INDEEMO TERMS AND CONDITIONS OF SERVICE

 

1. Definitions

1.1 In these terms and conditions the following terms have the following meanings:

Affiliate in relation to any company, any Subsidiary or Holding Company of that company or any subsidiary of that holding company and such terms shall be interpreted in accordance with clause 1.2(c);

Authorised Users any persons authorised by you to access the Services during the Term.

Customer, you and your individuals or entities (you and your) who purchase the Services in order to undertake research projects.

Claims all claims, complaints, demands, allegations, actions, suits, losses, liabilities, damages, settlements, expenses and costs (including legal representation and court costs, and any applicable VAT).

Commencement Date the date on which we issue an Order Confirmation in respect of the Services.

Fieldwork Period means the period during which Respondents can upload Research Content to the Platform as set out in the Quotation.

Dashboard Access Period (unless otherwise expressly stated in the Quotation) means the period of 6 weeks commencing at the expiry of the Fieldwork Period during which Project Owners, Researchers and Observers can access Research Content via Our Platform.

Contract the contract between you and us in relation to the Services consisting of these Terms and the Order as accepted by our issue of an Order Confirmation in accordance with Clause 4.4.

Data Protection Legislation together the General Data Protection Regulation (EU) 2016/679 and the Irish Data Protection Act 2018 (or any other applicable data protection legislation).

Order your written reply to a Quotation offering to purchase the Services set out in the Quotation in accordance with Clause 4.1

Order Confirmation a confirmation of our acceptance of your Order issued in accordance with Clause 4.4

Our Platform we own and operate the Indeemo Mobile Ethnography App and Qualitative Research Platform (Platform).

Quotation means a quotation for Services issued by us to you in response to your request for a quotation..

Researcher(s) means employees or agents acting on behalf of our Customer who use the Platform to undertake Research Projects.

Observer means a read-only Authorised User who is invited by the Project Owner to use the Platform to view Research Content for the Research Project as set out in the Quotation.

Project Owner means the Researcher who requests the setup of a Research Project pursuant to the Order Confirmation. For each Research Project, only the Project Owner will have permission to edit Task Lists, invite registered Researchers to take part in the Research Project, invite Observers to view Research Content for the Research Project or export Research Content from the Platform.

Respondents individuals recruited and incentivised by our Customer or by third party recruiters (Recruiters) acting on behalf of our Customer use the Platform to take part in research projects.

Research Content customers upload tasks (e.g. surveys, media, questions, concepts, assignments) and Respondents respond to these tasks by uploading photos, videos, text and comments (collectively referred to as Research Content).

Services mobile ethnography services provided by us to you via our Platform as more particularly described in the Order.

Terms and Conditions these terms and conditions.

We, us and our. Tweekaboo Limited t/a Indeemo (company number 484471) is a company registered in Ireland and our registered office is at Unit 1B, The Atrium, Blackpool Retail Park, Co. Cork, T23 T2VY, Ireland.

1.2 In these terms:

(a) references to any Irish legal term shall, for any jurisdiction other than Ireland, be deemed to include a reference to the term which most nearly approximates to the Irish legal term in that jurisdiction;

(b) Data ControllerData Processor and Personal Data have the meaning given to them in the Data Protection Legislation;

(c) Subsidiary and Holding Company have the meaning given to them in Section 7 and Section 8 of the Companies Act 2014

2. Contact Details

2.1 Contacting us. To contact us telephone our customer service team at +353 86 803 1000 or e-mail info@indeemo.com. How to give us formal notice of any matter under the Contract is set out in clause 2.

3. Our contract with you

3.1 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter and any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing are hereby excluded. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3.2 Term. Unless otherwise expressly stated in the Quotation, the term of the Contract shall begin on the Commencement Date and end 6 weeks after the expiration of the Fieldwork Period specified.

3.3 Language. These Terms and Conditions and the Contract are made only in the English language.

3.4 Binding on successors and assigns. These Terms and Conditions and the Contract are binding on the parties successors and permitted assigns.

4. Placing an order and its acceptance

4.1 Placing your order. On receipt of a request for quotation from you, we will issue a Quotation. To order the Services, you must issue an Order offering to purchase the Services as set out in the Quotation. Your Order shall constitute an offer by you to buy the Services specified in the order subject to these Terms and Conditions.

4.2 Correcting input errors. Please check the Quotation carefully before submitting your Order. You are responsible for ensuring that your Order is complete and accurate.

4.3 Acknowledging receipt of your order. After you place your Order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 4.4.

4.4 Accepting your order. Our acceptance of your order takes place when we send an Order Confirmation to you confirming our acceptance of it, at which point (and on which date) the Contract between you and us will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.

4.5 Declining your order: we reserve the right to decline your Order in our absolute discretion.

4.6 If we cannot accept your order. If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your Order. If you have already paid for the Services, we will refund you the full amount.

4.7 Failure to go live. If you do not commence your use of the Services within 4 weeks of our issue of an Order Confirmation the contract for the Services will automatically terminate, we will refund any Charges already paid by you minus any costs we have incurred and you will be required to submit a new request for quotation for the Services.

5. The Services

5.1 Provision of the Services. In consideration of payment in accordance with Clause 7, we will provide you and any Authorised Users with a non-exclusive, non-transferable right to access and use the Service on an as-is basis, and to upload, process and download Research Content using our platform. This right is granted solely for the purpose of conducting the Research Project and for its duration as described in the Quotation. Authorised Users may be assigned different levels of Platform access by you.

5.2 Exclusions. Unless otherwise expressly stated in the Quotation the following exclusions apply:

(a) All task lists and associated tasks are assumed to be text based and do not include image or video stimuli.

(b) Mobile Screen Recording is excluded from the scope of the Services.

(c) Automated video transcription is excluded from the scope of Services.

(d) The provision of anonymous emails to pseudonymise Respondents is excluded from the scope of the services.

(e) Project design, project consultancy, project setup or project management by the Indeemo Support team is excluded from the scope of the services.

(f) New features, functionality, upgrades or capabilities that might be added to Our Platform or to the Services after the date of the Quotation.

5.3 Maintenance. We will retain sole control over the operation, provision, and management of the Services, and provide all such maintenance that we deem reasonably necessary to maintain and operate the Services on an ongoing basis, including, without limitation, backups, maintenance of the service, system upgrades and any troubleshooting. We will make commercially reasonable efforts to perform all maintenance to the Services during off-peak times; provided, however, that any maintenance and repairs other than routine maintenance and repairs may occur at any time as required.

5.4 Descriptions and illustrations. Any descriptions or illustrations on our website or elsewhere are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.

5.5 Compliance with specification. Subject to our right to amend the specification (see clause 6) we will supply the Services to you in accordance with the specification for the Services set out in the Order Confirmation in all material respects.

5.6 Changes to specification. We reserve the right to amend or upgrade the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services. If any change or amendment will materially impact your use of the Services, we will notify you of any such event and you shall have the option to terminate the Contract and receive a refund of Charges already paid to us, less the amount of any costs we have incurred.

5.7 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.

5.8 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.

6. Your obligations

6.1 It is your responsibility to ensure that:

(a) the terms of the Quotation and your Order on foot of same are complete and accurate;

(b) you co-operate with us in all matters relating to the Services;

(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d) no one other than you and your Authorised Users uses the Services or accesses our Platform;

(e) you, your Authorised Users and any Recruiters engaged by you comply with all applicable laws in relation to the receipt of the Services and use of our Platform including, without prejudice to the generality of the foregoing, the Data Protection Legislation..

6.2 Without prejudice to the generality of Clause 6.1(e), it is your responsibility to ensure that:

(a) you obtain the explicit, freely given consent of Respondents to your use of the Services to collect, process, store and disseminate the Research Content and subsequently export the Research Content from the platform.

(b) you inform Respondents for how long their Research Content will be held on the Platform, what purpose it is being used for, where said Research Content will be exported to once your use of the Services expires (whether inside our outside the EEA) and for how long it will be held thereafter.

6.3 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 6.1 (Your Default):

(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 15 (Termination);

(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and

(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

7. Acceptable Use

7.1 You 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:

(a) Is unlawful, harmful, defamatory, obscene, threatening, pornographic, harassing or racially or ethnically offensive;

(b) Facilitates any illegal activity;

(c) Promotes unlawful violence in any way;

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

(e) causes injury or damage to any person or property.

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

8. Charges

8.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 7.

8.2 The Charges are the prices set out on the Quotation.

8.3 If you wish to change the scope of the Services after we accept your order (for example to increase the number of Respondents, the number of Researchers, the number of Observers, the number of Tasks, the number of Target Groups, the duration of the Fieldwork Period, the commencement date, the phasing of the Fieldwork Period, the number of countries in which Respondents are located, alter the scope of the Services in any way or avail of new functionality on our Platform that was not part of the Services when we issued the Quotation), and we agree to such change, we will modify the Charges accordingly.

8.4 Additional charges will apply for any usage of Our Platform or the Services after the Commencement Date that exceeds the scope of the Quotation.

8.5 Our Charges may change from time to time, but changes will not affect any Order you have already placed.

8.6 Our Charges are exclusive of VAT and any similar taxes that we are required to apply in jurisdictions outside of Ireland. Where VAT or any such other applicable taxes are payable in respect of some or all of the Services you must pay us such additional amounts in respect of said taxes, at the applicable rate, at the same time as you pay the Charges.

9. How to pay

9.1 Unless otherwise specified in the Quotation, we will invoice you for the services on the Commencement Date and payment will be due within 30 days of the date of the invoice.

9.2 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 15 (Termination):

(a) we may at our sole discretion, suspend the Services and your access to our Platform date until payment of the overdue sum;

(b) you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.2 will accrue each day at 4% a year above the Central Bank’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.3 All amounts due under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. Intellectual property rights

10.1 All intellectual property rights in or arising out of or in connection with the Platform or the Services (other than intellectual property rights in the Research Content) will be owned by us or by our licensors.

10.2 You shall, on demand, indemnify, keep indemnified and hold harmless (and/or at our request defend) us and our Affiliates, and our and their successors and assigns from and against any Claims from a third party which is in any way connected with Research Content infringing on the intellectual property rights of any third party.

11. Data Processing

11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Legislation.

11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the Data Controller and we are the Data Processor of any Personal Data.

11.3 Without prejudice to the generality of clause 1, we shall, in relation to any Personal Data processed by us in connection with the performance of our obligations under this agreement:

(a) process that Personal Data only on the documented written instructions of the Customer unless we are required by Data Protection Legislation to otherwise process such Personal Data. Where we are relying on laws of a member of the European Union or European Union law as the basis for processing such Personal Data, we shall promptly notify you of this before performing the processing required by the Data Protection Legislation unless the Data Protection Legislation prohibits us from so notifying the you;

(b) ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that all personnel who have access to and/or process such Personal Data are obliged to keep the such Personal Data confidential;

(d) not transfer such Personal Data outside the EEA without your consent (and subject then, in the event of any transfer outside the European Economic Area, to the execution of any agreement or other instrument which, in your reasonable opinion, is required in order to lawfully effect any such transfer of such Personal Data);

(e) assist you, at your cost, in responding to any request from a data subject (as defined in the Data Protection Legislation) and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify you without undue delay on becoming aware of a Personal Data Breach;

(g) at your written direction, delete or return Personal Data and copies thereof to you, or any nominated agents, on termination of the agreement unless required by law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate our compliance with this clause 11 and allow for audits by you or your designated auditor and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.

11.4 We engage the following third party processors of Research Personal Data under this agreement:

(a) Amazon Web Services (AWS): hosting and processing of Research Content (processed within the EU)

(b) Microsoft: processing of Research Content (processed within the EU)

(c) Transloadit: processing of Research Content (processed within the EU)

(d) Postmark: secure delivery of email notifications (located in the US outside the EEA)

You consent to the appointment of the above third-party processors of Personal Data. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business which we confirm reflect and will continue to reflect the requirements of the Data Protection Legislation.

12. Data Export & Data Deletion

12.1 Unless otherwise expressly stated in the Quotation, the Project Owner will, for the Dashboard Access Period, be able to download a bulk export of all Research Content relating to the Research Project specified in the Quotation. Once the Dashboard Access Period expires, access to the Research Project on the platform will be removed for all Authorised Users and all Research Content will be permanently deleted from our Platform.

13. How we may use your personal information

13.1 While we are processors of the Research Personal Data, we will use other personal information you provide to us to:

(a) provide the Services;

(b) process your payment for the Services; and

(c) inform you about service updates, platform functionality, relevant case studies or similar services that we provide, but you may stop receiving these at any time by contacting us.

13.2 Further details of how we will process personal information are set out in https://indeemo.com/privacy-policy

14. Limitation of liability

14.1 We will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and any indirect special, consequential, incidental or punitive loss or damage.

14.2 Subject to clause 1.1, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total Charges paid under the Contract in the preceding period of 12 months.

14.3 We have given commitments as to compliance of the Services with the relevant specification in clause 5.5. In view of these commitments, the terms implied by sections 3[, 4] and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

14.4 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

14.5 You shall, on demand, indemnify, keep indemnified and hold harmless (and/or at our request defend) us and our Affiliates, and our and their successors and assigns from and against any Claims arising as a result of a breach by you, your Authorised Users, the Researchers or the Respondents of any applicable law or the rights of any third party.

14.6 This clause 13 will survive termination of the Contract.

15. Confidentiality

15.1 For the purposes of this clause 14, the Confidential Information of a party shall mean any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, intentions or methods of a party which is disclosed to or otherwise obtained by the other party in connection with this Agreement. For the avoidance of doubt, Research Content shall constitute Confidential Information.

15.2 We each undertake that we will not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning one another’s business, affairs, customers, clients or suppliers, except as permitted by clause 3.

15.3 We each may disclose the other’s confidential information:

(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 14; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.4 Each of us may only use the other’s confidential information for the purpose of fulfilling our respective obligations under the Contract.

16. Termination

16.1 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:

(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;

(b) you fail to pay any amount due under the Contract on the due date for payment;

(c) you take any step or action in connection with you entering examinership or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;

(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; or.

(f) if we believe on reasonable grounds that the nature of the project in respect of which the Services are being provided is such that it would cause damage our goodwill or reputation.

16.2 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.

16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

17. Events outside our control

17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control, including, but not limited to, any interruption in our provision of the Services that results from any unavailability of the services provided to us by a sub-processor named in Clause 11.5. (Event Outside Our Control).

17.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:

(a) we will contact you as soon as reasonably possible to notify you; and

(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.

17.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.

18. Non-solicitation

You must not attempt to procure services that are competitive with the Services from any of our directors, employees, subcontractors or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you [and for a period of six months following termination of the Contract. Communications between us

18.1 When we refer to “in writing” in these Terms and Conditions, this includes email.

18.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.

18.3 A notice or other communication is deemed to have been received:

(a) if delivered personally, at the time the notice is left at the proper address;

(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or

(c) if sent by email, at 9.00 am the next working day after transmission.

18.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

18.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

19. General

19.1 Assignment and transfer.

(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing or by posting on our website if this happens.

(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

19.2 Variation. Any variation of the Contract only has effect if it is in writing and accepted by you and by one of our directors.

19.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.

19.4 Severance. Each paragraph of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

19.5 Governing law and jurisdiction. The Contract is governed by Irish law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the Irish courts.

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