Last Updated: 25 May 2018
This Agreement (the “Agreement”) is between Crowdoscope Ltd and the Customer. This Agreement governs the subscription to and use of Crowdoscope and any services provided by Silverman Research Ltd (the “Services”).
You are the “Customer” under this Agreement if you are ordering the Services and in doing so you accept the terms of this Agreement. If you are an organisation, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, by using the Services or Websites.
1.1. Services. As part of the Customer’s subscription, Crowdoscope will provide the Customer with access to Crowdoscope (the Services) through their own Crowdoscope Account.
1.2. Crowdoscope Free Trials are for 30 days only and are limited to one trial per person.
1.3. Changes to Services. Crowdoscope continually changes and improves the Services. The Customer’s use of any new features and functionality added to the Services may be subject to additional or different terms relating to such new features and functionality. Crowdoscope may alter or remove functionality from the Services at any time without prior notice. However, Crowdoscope will endeavour to provide the Customer with prior notice if we make a change to the Services resulting in a material decrease in functionality.
1.4. Suspension of Services. Crowdoscope may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance). If Crowdoscope limits or suspends the Services, we will endeavour to give the Customer reasonable advance notice so that the Customer can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for Crowdoscope to give advance notice. Crowdoscope will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
2.0 Privacy and Data Security
2.3. Data Security. Crowdoscope will store and process your Content in a manner consistent with industry security standards. Crowdoscope has implemented appropriate technical, organisational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorised access to or use of your Content.
2.4. Account Security. The Customer is responsible for maintaining the confidentiality of passwords and any other credentials used to access its accounts. The Customer will use commercially reasonable efforts to prevent unauthorised use of the Services and will terminate any unauthorised use of which it becomes aware. The Customer, and not Crowdoscope, is responsible for any activity occurring in its Accounts (other than activity that Crowdoscope is directly responsible for which is not performed in accordance with the Customer’s instructions), whether or not authorised. The Customer will notify Crowdoscope promptly if the Customer becomes aware of any unauthorised access to its accounts. Accounts may not be shared and may only be used by one individual per account.
3.1. Ownership of Content. You retain ownership of all of your Content and all intellectual property rights contained within your Content. Crowdoscope or Crowdoscope do not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Crowdoscope IP. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content).
3.3. User Content. The Services display content provided by others that is not owned by Crowdoscope or Crowdoscope. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Crowdoscope is not responsible for any actions you take with respect to your Content, including sharing it publicly.
4.0 Acceptable Use
4.1. Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.
4.2. Your Responsibilities. You are responsible for your conduct, the conduct of any users, the Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
(a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not reverse engineer the Services or attempt to do so.
(d) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(e) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Crowdoscope will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Crowdoscope.
(f) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
(g) Unless authorised by Crowdoscope in writing, you may not resell or lease the Services.
5.0 Account Management
5.1. Keep Your Password Secure. If you have been issued an account by Crowdoscope in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Crowdoscope, are responsible for any activity occurring in your account (other than activity that Crowdoscope is directly responsible for which is not performed in accordance with your instructions), whether or not you authorised that activity. If you become aware of any unauthorised access to your account, you should notify Crowdoscope immediately. Accounts may not be shared and may only be used by one individual per account.
5.2. Keep Your Details Accurate. Crowdoscope occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
5.3. Remember to Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Crowdoscope will not be liable for any failure to store, or for loss or corruption of, your Content.
5.4. Account Inactivity. Crowdoscope may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
5.5 Free Trial Accounts. If a Free Trial user does not upgrade to a paid account after their free trail expires, their account will be deleted.
6.0 Disclaimers and Limited Liability
6.1 Disclaimers. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND CROWDOSCOPE DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
6.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CROWDOSCOPE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF CROWDOSCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF CROWDOSCOPE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO CROWDOSCOPE FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
7.0 Fees and Billing
7.1. Fees for Services. The Customer will pay to Crowdoscope all applicable fees for the Services. Fees paid by the Customer are non-refundable, except as provided in this Agreement or when required by law.
7.2. Subscriptions. The Services are billed on an annual basis. This means that the Customer will be billed on an annual basis for a subscription.
8.0 Term and Termination
8.1. Term. This Agreement continues until the Customer ends the use of the services at the completion of a billing cycle or otherwise terminates, or if this Agreement is terminated.
8.2. Termination without Cause. The Customer may terminate this Agreement at the end of a billing cycle by submitting a written request to Crowdoscope.
8.3. Termination for Cause. Each of the Customer and Crowdoscope may suspend performance or terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Crowdoscope may terminate this Agreement if any payment owed by the Customer to Crowdoscope is more than 90 days overdue.
9.1. By Customer. The Customer will indemnify, defend, and hold harmless Crowdoscope from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of a third-party claim regarding or in connection with: (a) Customer Data (including claims of intellectual property infringement); (b) the Customer’s use of the Services in breach of this Agreement; and (c) use of the Services by the Customer’s End Users.
9.2. By Crowdoscope. Crowdoscope will indemnify, defend, and hold harmless the Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of a third party claim that the Crowdoscope technology used to provide the Services to the Customer infringes any copyright, UK patent, trademark or trade secret of such third party. However, in no event will Crowdoscope have any obligations or liability under this Section arising from: (a) use of any Services in a modified form or in combination with materials not furnished or authorised by Crowdoscope; or (b) any content or data provided by the Customer, End Users, or third parties.
9.3. Potential Infringement. If Crowdoscope believes the Services may infringe or may be alleged to infringe a third party’s intellectual property rights, then Crowdoscope may: (a) obtain the right for the Customer, at Crowdoscope’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Crowdoscope does not believe that the foregoing options are commercially reasonable, then Crowdoscope may suspend or terminate the Customer’s use of the impacted Services and provide a pro rata refund of any fees prepaid by the Customer applicable to the period following the termination of such Services.
9.4. Indemnity Procedures. A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that: (a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defence with its own counsel at its own expense. THE INDEMNITIES IN THIS AGREEMENT ARE A PARTY’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
10.0 GDPR Terms for Customers in Europe
10.1 Definitions. These additional terms will apply where you operating as a “data controller” (as that term is defined in the GDPR) in your use of the Services. The terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR.
10.3 Customer Obligations. You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to Crowdoscope so that Crowdoscope may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by Crowdoscope in the provision of the Services.
10.4 Crowdoscope Obligations.
Where Crowdoscope is processing personal data on your behalf, it will:
(b) ensure that all Crowdoscope personnel involved in the processing of personal data have committed themselves to confidentiality;
(c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by Crowdoscope and is not otherwise available to you through your account and user areas or on Crowdoscope websites, provided that you provide Crowdoscope with at least 14 days’ written notice of such an information request;
(d) promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Services;
(e) upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 12 months after data is deleted from an account); and
(f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.
10.5 Crowdoscope sub-processors. Crowdoscope uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorisation to Crowdoscope to engage onward sub-processors, subject to compliance with the requirements set out here.
10.6 Security Incident. If Crowdoscope becomes aware of any unauthorised or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data (“Security Incident”), Crowdoscope will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. Crowdoscope will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by Crowdoscope.
10.7 Liability for Data Processing. The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section shall be as set out in these terms, unless otherwise agreed in writing.
11.0 Other Terms
11.1 Assignment. No party shall without the prior written consent of the other assign (including by operation or merger) or otherwise dispose of the Agreement in whole or part or subcontract any duties or obligations under the Agreement to any third party. However either Party may assign the Agreement in part or in full to any Affiliate.
11.2 Third party rights. The respective parties to the Agreement do not intend that any term of such part should be enforceable by any other person.
11.3 Notices. All notices to be given under this Agreement shall be in writing, by the following methods only and shall be deemed to have been validly given (a) on the date of delivery, if delivered by hand, prepaid courier or email; or (b) three (3) days after posting if sent by prepaid first class post.
11.4. Waiver and variations. No delay in exercising or non-exercise by any party of any of its rights, powers or remedies under or in connection with this Agreement (or any part) shall operate as a waiver of that right, power or remedy. No amendment or variation to the Agreement (or any part) or any waiver or release of any right, power or remedy of a party shall be of any effect unless it is agreed in writing by each relevant party.
11.5. No agency or partnership. Crowdoscope and Crowdoscope are independent contractors. Nothing in this Agreement shall make either Party the legal representative, agent or partner of the other nor shall any of them have the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other.
11.6. Force Majeure. Neither Crowdoscope nor the Customer will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party’s reasonable control.
11.7. Conflict of Interest. To the extent any conflict exists between them, the Proposal or Statement of Work (if one exists) prevails over this Agreement.
11.8. Law and Jurisdiction. This Agreement and any non-contractual rights and/or obligations arising out of or in connection with such Agreement shall be governed by and construed in accordance with law of England and Wales (including injunctions and other protective and preliminary measures) and each party hereby submits to the exclusive jurisdiction of the English courts.