STANDARD CONDITIONS OF SERVICE

Tweekaboo Limited trading as INDEEMO

Interpretation and Definitions

In these conditions of service:

‘‘Supplier’’ means Tweekaboo Limited trading as Indeemo (“Indeemo”), registered in Ireland no. 484471, whose registered office is at Unit 1B The Atrium, Blackpool Retail Park, Cork, Ireland.

‘‘Customer’’ means the legal or natural person who purchases the Services.

‘‘Service(s)’’ means the services ordered by the Customer from the Supplier, in an order which has been accepted by the Supplier. It includes, but is not limited to, a mobile and cloud based research technology platform that The Supplier provides to the Customer to enable Researchers to survey and interact with Respondents using the Service as part of a Research Project for the purposes of gathering market research data to produce insights. Respondents use the Service on a smartphone or tablet either as an iPhone App, Android app or a mobile optimised web app. Researchers and Observers use the Service through a web based Researcher Dashboard which is located at https://client.indeemo.com.

“Researcher(s)” means employees, agents, subcontractors or associates of the Customer who use the Service for the purpose of conducting Research Projects. Researchers can use the Service to create projects, invite Respondents to take part in Research Projects, interact with / moderate Respondents and process both the Research Content and Profile Information that Respondents input to the service.

“Respondent(s)” means individual persons who are recruited by the Customer or by third party Recruiters (“Recruiters”) acting on behalf of the Customer and who are incentivised to use the Service to take part in Research Projects.

“Observer(s)” means employees of the legal entity or person on whose behalf the Customer may be acting or, employees of the Customer itself who are given access to the Service to observe a particular Research Project. Observers differ from Researchers in that Observers have read-only access to a Research Project, are not able to create Research Projects, are not able to interact with Respondents in a Research Project or input / manipulate Research Content relating to a particular Research Project. Furthermore, Observers cannot see the Profile Information of the Respondents linked to a particular Research Project. It is possible for the same Customer to act as a Researcher on one Research Project and act as an Observer on another Research Project.

“Authorised Users” means Observers, Researchers or Respondents who under the instruction of the Customer, have access to the Service and are instructed by the Customer to use the Service for a Research Project.

“Research Project(s)” means an assignment of tasks, surveys, instructions and/or questions prepared by the Researchers and/or Observers and assigned to the Respondents for the purposes of research to complete over a period of time (referred to in the Purchase Agreement as “Fieldwork”) using the Service by uploading Research Content to the Service.

“Research Content” means tasks, assignments, instructions, surveys or questions uploaded to the Service by the Customer Researcher and also includes person data provided by the Respondents which may include but is not limited to photos, videos, text, screenshots, comments, notes, ideas, concepts, designs, summaries, suggestions, opinions, sketches, documents, analyses, and reports.

“Profile Information” means Information that Respondents provide in order to register with the Service. It includes first name, last name, email address, password and optionally gender, country, birthdate and a profile picture.

“Supplier Subcontractor(s)” means a legal entity or person commissioned by or contracted to The Supplier to run, provide, host, monitor, serve, support, administer, develop, enhance, design, market, sell, promote and implement the Service including the storage, hosting, processing, serving, archiving and transmission of Research Content and Profile Information associated with a Research Project.

“Purchase Agreement” means the contract between The Supplier and the Customer containing the relevant Research Project details, the scope of the Research Project to be carried out using the Service, the scope of the Services to be provided by The Supplier in its provision of the Service for the Research Project and the associated costs.

“The Supplier’s Property” means The Supplier’s intellectual Property which shall include the Service and any associated software, applications, designs, concepts, business information, financial information, documents, flow charts, processes, plans, projections, features, proposals, logos, trademarks, patents, trade secrets and Confidential Information.

1. Agreement: This Agreement is entered into between:

  • Tweekaboo Ltd trading as Indeemo, hereinafter referred to as “the Supplier”, a company limited by shares which is registered at Unit 1B The Atrium, Blackpool Retail Park, Cork, T23 T2VY, Ireland and acting under the laws of Ireland, and

  • The Customer, a legal entity or person acting in a commercial or professional capacity who commissions the Supplier either on its own behalf or on behalf of another entity or person to provide the Service.

Each can be described as a “Party” and together as “the Parties”.

2. Prices: Unless another price is quoted by the Supplier in writing and accepted by the Customer, the price of the Services is the Supplier’s relevant standard price for the particular Services as at the date of the order. The relevant standard price for the services is set out in the Purchase Agreement.

3. Description of the Service. Subject to payment in accordance with Paragraph 2 above, the Supplier provides the Customer and the Authorised Users with a non-exclusive, non-transferable right to access and use the Service on an as-is basis. This right is granted solely for the purpose of conducting the Research Project and for its duration as described in the Purchase Agreement.

The Supplier provides the Customer and the Authorised Users technical support or other services related to the use of the Service to the extent that is reasonable.

4. Provision of Service. The Supplier will retain sole control over the operation, provision, and management of the Service, and provide all such maintenance that it deems reasonably necessary to maintain and operate the Service on an ongoing basis, including, without limitation, backups, maintenance of the service, and any troubleshooting. The Supplier shall make commercially reasonable efforts to perform all maintenance to the Service during off-peak times; provided, however, that any maintenance and repairs other than routine maintenance and repairs may occur at any time and, if required, will be performed in all respects based on the Supplier’s good faith and business judgment.

5. Continuity of Service. In the event the Service is unavailable or offline, the Supplier shall make commercially reasonable efforts to provide a back-up or alternate server as quickly as possible. The Supplier shall exercise a standard of care that is customary in the industry.

6. VAT. Unless expressly quoted as including VAT, all prices provided or quoted are exclusive of value added tax or any other government taxes or duties which, if applicable, shall be paid by the Customer.

7. Performance Dates. The Supplier shall use reasonable efforts to meet any stated dates for performance but shall not be liable (in contract, negligence or otherwise) for any loss or damage resulting from its failure to do so, howsoever

8. Time of Invoice. Unless otherwise agreed in writing, The Supplier may invoice the Customer weekly, with a final invoice upon completion of the Services.

9. Payment Terms. Unless otherwise agreed in writing by the Supplier, the Customer shall make all payments due to the Supplier, on or within 30 days of the date of the invoice, in cleared funds to the bank account nominated by the Supplier.If the Supplier has not received payment of any invoice within 14 days after the due date, and without prejudice to any other rights and remedies of The Supplier:

– The Supplier may, without liability to the Customer, disable the Customer’s and/ or Authorised Users’ passwords, account and access to all or part of the Service and The Supplier shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and

– suspend the Services or any part of them; and

– interest shall accrue on such due amounts at the rate of the European Central Bank (ECB) lending rate + 8% as at the Invoice due date, commencing on the due date and continuing until fully paid, whether before or after judgment. Penalty interest due for late payments should be calculated on a daily basis.

All fees stated or referred to in the Purchase Agreement are full and final.

10. No Deductions. The Customer shall make all payments in Euros, without set-off or counterclaim and free and clear ofall taxes, deductions, withholdings and other charges.

11. Interest. The Customer shall pay to the Supplier interest on any overdue amount at a rate of 8% per annum above the refinancing base rate of the European Central Bank, from the due date for payment until payment, calculated on a daily basis and compounded monthly. Interest will be payable both before and after judgement

12. Queries and Complaints. Notification of queries and/or complaints must be notified to the Supplier in writing within fourteen (14) days of the problem arising, or fourteen (14) days of completion of the Services, whichever is the earlier.

13. Warranties. The Supplier warrants that the Services will be provided with due skill, care and diligence, and that any materials used will be sound and reasonably fit for the purpose for which they are required.

14. Confidentiality. The Supplier will hold all information, documentation, or data provided to it for, by or on behalf of the Customer in confidence. Subject to the Data Processing Agreement between the Parties, the Supplier may, with the express prior written permission of the Customer, use data provided to it or case studies derived from this data for marketing purposes.

15. Access Limitations. The Customer shall not permit any other person or entity to access or use the Service or the Supplier’s Property except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable Third-Party license agreement. Any access by any parties under this agreement in the delivery of the service, shall be warranted by the Customer to be in compliance with this Agreement and the related Data Processing Agreement.

16. Remedy. If the Supplier is in breach of the warranties given by it under this Agreement or the Quotation, its liability shall be limited to:

correcting the relevant fault, at its own expense; or

at the option of the Supplier, reimbursement of the price of the Services in question.

There shall be no limitation on the Customer’s liability for any breach of this Agreement and/or the Purchase Agreement and/or the Data Processing Agreement.

17. No Other Liability. The Supplier shall have no further liability to the Customer other than as described in this Agreement, whether under these conditions of service or on any other basis including liability in tort as a result of the sale of the Services.

18. Consequential Loss Etc.: The Customer undertakes to the Supplier to comply strictly with the Agreement. The Customer acknowledges that its compliance with the Agreement is designed to minimise the risk of unauthorised use of the Service. Except as set out elsewhere within these Conditions, the Customer agrees to indemnify the Supplier in full in respect of any loss or damages which may arise to the Supplier, the Customer or any third party as a consequence of its non-compliance with the Agreement.

19. Limitation of Liability: The Supplier shall not under any circumstances be liable to the Customer by reason of any representation or warranty, condition or other term or any duty of common law, or under the express terms of these conditions or service, for any consequential, special, incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise) and whether occasioned by the negligence of the Supplier, its employees or agents or otherwise, even if advised of the possibility of such damages.

20. Non-Excludable Liability. Nothing in these conditions of service shall operate to exclude or limit any statutory rights which cannot be legally excluded or limited.

21. Changes to the Service: The Supplier reserves the right, in its sole discretion, to make any changes, modifications, updates, or revisions to the Service that it deems necessary or useful, including but not limited to, changes to:

Maintain, extend or enhance the quality and/or delivery of the Service, the competitive strength of the Service, or the Service’s cost efficiency or performance; or

comply with any applicable law.

22. Sub-Contracting: The Supplier may in its discretion delegate any of its duties in the provision of the Services.

23. Relationship of the Parties: Nothing in these conditions of service or elsewhere shall be deemed to make the Supplier an employee, agent or partner of the Customer for any purpose whatsoever.

24. Application. These conditions of service shall apply to any purchase of services under a Purchase Agreement which is accepted by the Supplier. No other terms shall apply to the sale of the Services, including any standard conditions of purchase of the Customer, even if they are printed on the written order of the Customer or any other document issued by the Customer.

25. Severability. If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

26. Acceptable Use. The Customer shall not, and shall ensure that all Authorised Users shall not, access, store, upload, distribute or transmit any harmful computer programme such as a virus or malware or any content during the course of its use of the Service that:

  • Is unlawful, harmful, defamatory, obscene, threatening, pornographic, harassing or racially or ethnically offensive;

  • Facilitates any illegal activity;

  • Promotes unlawful violence in any way;

  • Is discriminatory based on race, gender, ethnicity, religious belief, disability, sexual orientation or any other illegal activity; or

  • causes injury or damage to any person or property.

If the Supplier is required by a third party to remove any Research Content from the Service, or receives information that Research Content may violate any applicable law or third-party rights, or otherwise violates this Agreement or any other policy, the Supplier will notify the Customer and in such event the Customer will promptly remove such Research Content from the Service. If the Customer does not take required action in accordance with the above as soon as is practicable and not later than 24 hours after such notification, the Supplier may remove the aforementioned Research Content.

27. Amendment: This Agreement may not be amended except by an instrument in writing signed by each of the Parties or otherwise as provided for in this Agreement.

28. Intellectual Property. The intellectual property rights in all data, information, systems, processes or other material used by or developed by the Supplier for the purposes of providing the Services or performing our obligations under the Agreement shall remain vested, or upon their creation vest, in us or our licensors.

  • The copyright and all other rights in any of the Supplier’s Property, software or firmware in devices or services provided and in any user guides or other information provided to the Customer, remains owned by the Supplier or by the natural or legal person who licenses it to the Supplier (if applicable). The Customer must use any Services provided by the Supplier exclusively in connection with this Agreement and for the purpose of receiving the Services as contemplated by the Agreement and as described in any user guide or other information provided to the Customer. The Customer will obtain no rights, title or interest in any such materials or intellectual property rights relating to them.

  • Save where otherwise specified, the intellectual property rights and contents of the Supplier’s Property or the Service are owned by it or its licensors. Reproduction of part or all of the contents of the Supplier’s Property or the Service in any form is prohibited without its prior consent.

29. Termination on Notice. Each Party may terminate this Agreement for any reason on a 20 business days’ notice to the Other Party, to be delivered by way of Ordinary Recorded Post to the registered or habitual office of the Other Party, or by electronic mail to a recognised business email address. Correctly-addressed notices sent by post shall be deemed to have been delivered 72 hours after posting and correctly directed email transmissions shall be deemed to have been delivered instantaneously on transmission providing that they are confirmed as set out as above.

30. Termination for Material Breach. Each Party may terminate this Agreement with immediate effect by delivering notice of the termination to the Other Party, if

the Other Party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and

the failure, inaccuracy, or breach continues for a period of 10 Business Days’ after the injured Party delivers notice to the breaching Party reasonably detailing the breach.

31. Termination for Failure of Condition. Each Party may terminate this Agreement with immediate effect by delivering notice of the termination to the Other Party, if any of the provisions set out in this Agreement have not been fulfilled, or it becomes apparent that any such provisions will not be fulfilled and such non-fulfilment was not due to the failure of the injured Party to perform or comply with any of its representations, warranties, covenants, or conditions to be performed or complied with.

32. Termination for Death or Insolvency. If either Party dies or becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the Other Party may terminate this Agreement with immediate effect.

33. Agency: The Customer agrees that it has entered into the Agreement for its own benefit and not for the benefit of another natural or legal person, and may not subcontract or assign any of its rights or obligations under the Agreement.

34. Waiver: Any waiver by the Supplier of a breach or default of any of the provisions of the Agreement shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of the Supplier to exercise or avail of any right, power or privilege that it has or may have, operate as a waiver of any breach or default by the Customer.

35. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of Ireland and each Party irrevocably agrees that the courts of Ireland are to have exclusive jurisdiction to hear disputes arising out of or relating to this Agreement.