Terms and Conditions Agreement

OnePulse Client (Online) Agreement

This Client Agreement (the “Agreement”) is entered into by and between the entity or person agreeing to these terms (“Client”) and Start Pulsing Ltd a company registered in England at 1st Floor, 143-149 Fenchurch Street, London, England EC3M 6BL.

Startpulsing Ltd is the owner of and provides the service called OnePulse.  Any reference to OnePulse or Startpulsing in this Agreement refers to Startpulsing Ltd.

This Agreement is effective as of the date on which the Client registers with OnePulse. If you are accepting on behalf of a Client (such as a Company), you represent and warrant that you: (i) have full legal authority to bind the Client to these terms and conditions; (ii) have read and understood this Agreement; and (iii) agree to this Agreement on behalf of the Client. This Agreement governs Client’s access to and use of the OnePulse service.

Startpulsing will provide the OnePulse service in accordance with this Agreement.  Startpulsing will provide the client with an ability to administer their account.

Startpulsing may make commercially reasonable changes to the OnePulse service from time to time.  If Startpulsing Ltd make a material change to the OnePulse product, Startpulsing Ltd will inform the Client via such method as Startpulsing Ltd may elect.

1. The OnePulse product is provided as is and no warranty is made as to its functionality or suitably for the Client unless evidenced in writing between the parties.

2. Data Protection

a. Definitions

• “Data Protection Law” means the Directive, the Regulation, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), any national laws or regulations implementing the foregoing Directives, any applicable legislation of European Union Member States passed to implement the foregoing, and any other applicable data protection, privacy or data security laws or regulations in the United Kingdom, Switzerland, or any other applicable European jurisdiction and any amendments to or replacements for any of the foregoing laws and regulations.
• “Directive” means European Union Directive (EC) 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
• “Regulation” means European Union Regulation (EU) 2016/679 (General Data Protection Regulation).
• “User Data” means any information received by the Client in connection with this Agreement which is deemed to be “personal data” under the Data Protection Law.
• In this Agreement, the terms “personal data“, “process“, “controller“, “processor“, “transfer” and “data subject” shall have the same definitions as in Data Protection Law.

b. The Parties acknowledge and agree that data and information made available to the Client under this Agreement may include User Data.  The Parties agree that they shall each be responsible for their own compliance with Data Protection Laws with respect to their use and processing of User Data in connection with this Agreement.

3. International Transfers

a. Where the Client is based outside of the European Economic Area, Startpulsing Ltd and the Client agree to incorporate the terms of the standard contractual clauses for the transfer of personal data to third countries set out in Commission Decision (2004/915/EC) (“Standard Contractual Clauses”).  In respect of the Standard Contractual Clauses, Startpulsing Ltd and the Client agree the following:

• Startpulsing Limited is the “data exporter” and the Client is the “data importer”;
• The Client (data importer) agrees to process the personal data in accordance with the data processing principles set forth in Annex A of the Standard Contractual Clauses;
• The information required by Annex B to the Standard Contractual Clauses is as follows:
  (A) The data subjects are the users of the OnePulse App;
  (B) The purpose of the transfer is to provide market research services to the Client;
  (C) The categories of data are the users’ responses to Pulses and may also include user images and unique identifiers;
  (D) The recipients of the data include the Client and any Client group company;
  (E) The data protection registration information of the data exporter is Start Pulsing Limited, ICO Registration Number ZA156654.
  

4. Client Obligations.

a. Compliance. The Client will ensure that the Client and any other authorised user of the Client login agree to use the service in accordance with the following guidelines:

The Client will not use OnePulse:

• to violate, or encourage the violation of, the legal rights of others;
• to engage in, promote or encourage illegal activity;
• for any unlawful, invasive, infringing, defamatory or fraudulent purpose.;
• to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
• to interfere with the use of OnePulse, or the equipment used to provide OnePulse;
• to disable, interfere with or circumvent any aspect of OnePulse;

5. Payment.

Payment must be made upon receiving an invoice from Startpulsing Ltd or in advance using our designated payment partner.

a. Where the Client has paid for Pulses to be used at a future time, the Client must use the Pulses paid for within the designated period or they will be no longer be available to the Client. The designated period is one month for clients on subscription packages, otherwise twelve months.

b. Payments due under an invoice are due 14 days after the invoice date unless otherwise agreed.

c. Late Payments. Startpulsing may charge interest at the rate of 2% per annum above the base rate of Natwest Bank PLC from time to time, from the due date until the date of actual payment, whether before or after judgment, on any overdue Fees Customer will be responsible for all reasonable expenses (including legal fees) incurred by Startpulsing Ltd in collecting overdue and unpaid amounts.

6. Confidential Information. “Confidential Information” means information disclosed by one party to the other party under this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential.

a. The recipient of any Confidential Information will not disclose that Confidential Information, except to Group Companies, subprocessors, employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities may use such Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice, if legally permissible, to the discloser. Any such notice will be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.

b. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

7. Intellectual Property Rights.

a. Intellectual Property Rights. Except as expressly stated otherwise in this Agreement, neither party shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party, or the other party’s licensors. As between the parties, the Client owns all Intellectual Property Rights in Client data, and Startpulsing Ltd owns all Intellectual Property Rights in the Services.

b. Except as required to deliver the OnePulse service, or as expressly permitted in this Agreement, neither party may display or use the other party’s trade names, trademarks, logos, domain names and other distinctive brand features other than as authorised through the use of the product.

c. OnePulse does not claim ownership of content the Client submits or makes available for inclusion on OnePulse. However, with respect to anything the Client submits, the Client grants OnePulse the following worldwide, royalty-free and non-exclusive license(s), as applicable:

With respect to any content the Client submits or makes available for inclusion on  OnePulse, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such material on OnePulse solely for the purpose for which such material was submitted or made available and for the reasonable marketing of OnePulse.

With respect to any output or content created using OnePulse (such as results) in any format, the perpetual, irrevocable and fully sublicensable licence to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and public display such output (in whole or in part) and to incorporate any or all output into other works in any format or medium now known or later developed.

8. Publicity. The Client agrees that Startpulsing Ltd may include the Client’s name, logo, trade names, trademarks and other brand features in a list of Startpulsing’s customers, online or in promotional material.  Startpulsing Ltd may also verbally reference the Client as a customer, unless the Client has expressly instructed in writing that they are not authorised to do so.

9. Limitation of Liability.

a. Nothing in this Agreement shall exclude or limit either party’s liability for: (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees; (b) fraud or fraudulent misrepresentation; (c) breach of any implied condition as to title or quiet enjoyment; or (d) misuse of confidential information.

b. Subject to Clauses 9.1, neither party shall be liable under this Agreement (whether in contract, tort (including negligence) or otherwise) for any of the following losses suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this Agreement):

c. Subject to Clauses 9.1 and 9.2, each party’s liability under this Agreement (whether in contract, tort (including negligence) or otherwise) for all causes of action arising in any Contract Year shall be limited to the total amount paid and payable by the Client  under this Agreement.

10. Disclaimers. No conditions, warranties or other terms apply to the OnePulse service supplied by Startpulsing Ltd under this Agreement unless expressly set out in this Agreement. For clarity, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).

11. Agreement Term. This Agreement will remain in effect for the time that the Client is a registered Client of OnePulse.

12. Termination .Either party may suspend performance and/or terminate this Agreement, with immediate effect, if the other party: (i) is in material breach of this Agreement where the breach is incapable of remedy; (ii) is in material breach of this Agreement two times or more notwithstanding any remedy of such breach; or (iii) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty days after receiving written notice of such breach.

a. Effects of Termination. If this Agreement terminates or expires, then: (i) the rights granted by one party to the other will cease immediately; (ii) Startpulsing Ltd will provide the Client access to, and the ability to export, the Client Data for a commercially reasonable period of time; (iii) after a commercially reasonable period of time, Startpulsing Ltd will delete Client Data by removing pointers to it on Startpulsing Ltd’s active and replication servers and overwriting it over time; and (iv) upon request each party will promptly use reasonable endeavours to return or destroy all other Confidential Information of the other party.

13. Miscellaneous.

a. Force Majeure. Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control.

b. Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.

c. No Agency. Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any kind between the parties.

d. No Third-Party Beneficiaries. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.

d. Amendments to the Terms and Conditions are made regularly and you are deemed to accept the current terms and conditions as and when you use the OnePulse.

This Agreement and its subject matter are governed by English Law. The Client agrees to submit to the exclusive jurisdiction of the English Courts.