Thymometrics Licence Agreement SULA

THYMOMETRICS USER LICENCE AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT AND BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

THIS AGREEMENT was last updated on 4^th December 2015.

Table of Contents:

1) Definitions

2) Grant of License

3) License

4) Payment

5) License Term & Renewal

6) Licensee’s Undertakings

7) Licensor’s Obligations

8) Intellectual Property Rights

9) Intellectual Property Indemnity

10) Warranties

11) Indemnity

12) Limitation of Liability

13) Insurance

14) Confidentiality, Data and Security

15) Termination

16) Force Majeure

17) Assignment

18) Waiver

19) Severence

20) Notices

21) Entire Agreement

22) Governing Law and Jurisdiction

1) DEFINITIONS

In this agreement the following expressions shall have the following meanings:

a) “Licensor” means Thymometrics Limited whose registered office is at CPC 1, Capital Park, Fulbourn, Cambridge, CAMBS, CB21 5XE, United Kingdom;

b) "Service" means the service as described in Schedule 1 to this agreement and the Service Documentation;

c) "Service Documentation" means the user instructions, operating manuals and all appropriate documentation supplied by the Licensor to enable the proper operation and functionality of the Service;

d) “Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between the Licensor and the Licencee. Order Forms shall be deemed incorporated herein by reference. “Service Description” means the description of the Service in Schedule 1;

e) “User” means any person authorised by the Licensee to use the Service;

f) "Active Service" means that the Service is available, and that Users may access the Service;

g) "Dormant Service" means that the Service is not yet ready for use, or is ready for use but is not an Active Service;

h) "Contribution" means any data provided by a User and captured by the Service, including but not limited to textual comments, numbers and logical values, whether provided directly by a User, derived from the position and settings of on-screen controls displayed as part of the Service and manipulated by a User, or derived from any other source;

i) "Licence" means a record kept by the Licensee of the Licensee’s acceptance of these Terms in associated with the Service thereby entitling the Licensee to a non-exclusive, non-transferable, right to operate and administer the Service on behalf of the Licensee and the Licensee’s Users in accordance with clause 2 of this agreement and with the Service Schedule until the expiry date shown in the Service Schedule;

j) "Licence Fee" means the fee for the Licence specified on the Order Form;

k) "License", "Licensing", "Licenses" or "Licensed" refers to the act of obtaining a Licence by agreeing to these Terms and paying the Licence Fee;

l) "User Licence" means the facility which allows the Licensee to specify that a given named User may access the Service. User Licences may be transferred between Users but may only apply to one User at a time. Users are required to affirm a separate agreement with the Licensor;

m) "Supplement" means a sum of money paid occasionally by the Licensee to the Licensor for provision of additional facilities or additional User Licences from the date of purchase until the end of the concurrent Licence;

n) "Service Schedule" means a statement of the start and end dates of the Licensee’s Licence to use the Service, the number of User Licences included, and a record of which parts of the Service have been licensed, as specified on the Order Form;

o) "Intellectual Property Rights" means all vested, contingent and future intellectual property rights including but not limited to copyright, trade marks, design rights, trade names, patents, know-how, trade secrets, database rights or any similar right exercisable in any part of the world including any application for the registration of any patents or registered designs or similar registrable rights in any part of the world.

2) GRANT OF LICENCE

The Licensor grants to the Licensee a non-exclusive licence to use the Service in accordance with the licence type described on the Order Form to this agreement ("the Licence Type") and the express terms of this agreement and not further or otherwise.

3) LICENCE

Notwithstanding any limitations imposed by the Licence Type, the Licensee shall have the right to use the Service according to the Service Schedule to provide the Licensee’s employees with the means to anonymously record at any time, and as often as they like, their priorities, satisfaction levels, feelings and comments concerning their working life, and to provide the Licensee with analytical and communication tools designed to enhance its understanding of what matters to its employees, and how well the employees feel their needs are being fulfilled.

4) PAYMENT

a) The Licence Fee shall be paid by the Licensee in accordance with the Order Form. The Licence Fee is exclusive of any applicable VAT and other sales tax.

b) The Licensor shall have the right to charge interest on overdue invoices at a rate of 4.00% per annum above the base rate of the Bank of England from time to time in force from the date when payment becomes due from day to day until the date of payment.

5) LICENCE TERM AND RENEWAL

a) On the first occasion of the Licensee’s purchase of a Licence from the Licensor, the Service will be deemed to be a Dormant Service until the Licensee provides the remainder of such information as the Licensor requires to configure the Service. The Licence shall commence on the date this information is provided, or the start date specified in the Service Schedule, whichever is the later, and shall continue until the end date specified in the Service Schedule, or until terminated in accordance with the provisions of this agreement.

b) An uninterrupted Service from year to year may be enjoyed by the Licensee providing the Licensee renew the Licensee’s Licence and complete the payment process before the expiry of any current Licence. Should the Licensee’s Licence expire without the Licensee having arranged its renewal, the Service will become a Dormant Service and will not be accessible to the Licensee or the Licensee’s Users, other than for the purpose of Licence renewal where such facilities exist.

c) Purchase of a Licence will provide the Licensee with the agreed number of User Licences which the Licensee may assign and re-assign to individual Users. Additional User Licences may be purchased at any time from the Licensor and will be charged for pro rata until the expiry of the Licensee’s current Licence. The Licensee’s Licence and all User Licences, whenever purchased, expire simultaneously. Wholly unused User Licences in any Licence period will be credited at their purchase price against the cost of Licence renewal.

6) LICENSEE’’S UNDERTAKINGS

a) Except to the extent permitted by the Licensee as a lawful user of the Service or to the extent permitted by law, the Licensee undertakes and agrees as follows:

i) Under no circumstances will the Licensor provide to the Licensee any personal details provided to the Licensee by the Licensee’s Users, including their private email address and their passwords;

ii) Any and all data provided to the Licensor and visible to the Licensee’s Users and third parties is derived from the freely given personal opinions of the Licensee’s Users via their Contributions, and therefore cannot be treated for any purpose as fact;

iii) Contributions, being the personal opinions of their authors, enjoy the protection of whatever free speech laws may apply, including but not limited to the First Amendment of the Constitution of the United States of America, and may not be considered libellous under United Kingdom laws.

iv) Intellectual Property Rights in Contributions made by Users remain with their respective authors, as the Licensor acts merely as custodians of those Contributions, and that purchase by the Licensee of a Licence to use the Service does not entitle the Licensee to any rights to or ownership of Contributions, notwithstanding any agreement the Licensee may have with Users to the contrary;

v) That the Licensee is solely responsible for the interpretation of any data available to the Licensee via the Service and for any consequences of that interpretation, and that the Licensor’s role under these Terms is strictly limited to providing the Licensee with that data, irrespective of any help advice and guidance the Licensor may give on a consultancy basis or provide on the Licensor’s website or in the Licensor’s Service documentation;

vi) It is solely the Licensee’s responsibility to encourage and persuade Users to use the Service, whether or not the Licensee uses aspects of the Service to effect this responsibility;

vii) Unless applicable law has been broken, the Licensee’s sole remedy in respect of the breaking by any User of any of the Licensee’s or the Licensor’s rules concerning the permissible content of Contributions shall be to refer the Contribution to the Licensor for resolution howsoever the Licensor sees fit, or use such other mechanism as the Licensor may provide for the Licensee’s use from time to time. The Licensee undertakes not to take or attempt to take additional action against any User for any such alleged breach, whether the Licensee knows or believes the Licensee knows the identity of that User or not;

viii) The Licensee undertakes to respect and maintain indefinitely the privacy and confidentiality of any information provided by a User that chooses to identify himself or herself to the Licensee, unless otherwise permitted by User at User’s sole discretion;

ix) The Licensee undertakes not to use the knowledge of a User’s identity, nor to identify or attempt to identify any User, nor to seek to persuade any User to self-identify, for the purpose of or with the intention of discriminating against, taking any disciplinary action against, terminating employment of, selecting for redundancy, selecting for non-renewal of contract or acting in any other way to disadvantage User because of the content of any of User’s Contributions to the Service;

x) The Licensee undertakes not to order, coerce, or otherwise require or cause any employee to act contrary to the terms of the End User Licence Agreement that they have with the Licensor;

xi) The Licensee undertakes not to use the Service for the purposes of political campaigning, religious proselytisation, commercial solicitation, or the organisation of any activity or event of an illegal nature;

xii) The Licensee undertakes not to use or launch any automated system such as robots or spiders to access the Service or collect or harvest any personal information, including account names, from the Service;

xiii) Subject to the Licensee’s prior written permission the Licensee agrees that the Licensor may identify the Licensee as the Licensor’s customer on the Licensor’s website and marketing materials and that the Licensor may reproduce the Licensee’s name and corporate logo trademarks for this purpose while the Licensee remains the Licensor’s customer;

xiv) The Licensor reserves the right to make changes to or improve the Service at any time without notice, which may include the addition, removal or modification of functionality, information, process, look and feel, or any other aspect of the Service;

xv) The Licensor may monitor the Licensee’s use of the Service for the purpose of ensuring its quality, security and availability, to help the Licensor to improve the Service, and to help the Licensee use the Service more effectively;

xvi) The Licensor uses the services of world-class cloud computing providers, who are chosen for their ability to maintain and high-performance high-availability facility. Whilst the Licensor aims to provide an uninterrupted Service to the Licensee, the Licensor reserves the right to withdraw access to parts or all of the Service on a temporary basis without compensation to the Licensee should the Licensor consider at its sole discretion that circumstances require this measure;

xvii) The Service is provided on an "as is" basis and its use is wholly at the Licensee’s own risk. Subject to Section 10, the Service is provided without further warranties of any kind, whether express or implied. Without limiting the foregoing, the Licensor and its subsidiaries do not warrant that the content is accurate, reliable or correct; that the Service will be available at any particular time or location; or that the Service is free of viruses or other harmful components;

xviii) Not to copy, adapt, modify or translate the Service Documentation without the prior written consent of the Licensor. The Licensor shall provide the Licensee with access to online copies of the Service Documentation to enable the proper operation and functionality of the Service;

xix) Not to translate, disassemble, decompile, reverse engineer, adapt, vary or modify the Service or parts thereof without the Licensor’s prior written consent. Notwithstanding this clause, in the case of reverse analysis where permitted by applicable law, the Licensee must seek and acquire the Licensor’’s prior written consent which will be granted if the outcome is not used to create any software or service which is substantially similar to the expression of the Service and is not used in any manner which would be restricted by copyright.

b) The Licensee undertakes during the continuance of the Licence to maintain adequate security measures to protect the Service from access or use by any unauthorised person.

7) LICENSOR’S OBLIGATIONS

Except to the extent permitted by law, the Licensor undertakes and agrees as follows:

a) Not to sell or give the names or email addresses of the Licensee’s Users or any other personal or corporate information provided by Licensee to any third party;

b) Not to provide any third party with the Licensee’s Users’ raw or processed Contributions, except in the following cases:

i) if the Licensee has selected to License that part of the Service which permits the comparison by anonymous sharing of the Licensee’s Users’ aggregate Contributions with those of other organisations taking out an equivalent Licence;

ii) The Licensor may aggregate or analyse the Licensee’s Users’ raw or processed Contributions together with those of other Users of other licensees, and freely use the information generated thereby as long as the Licensor does not identify the Licensee or the Licensee’s Users or the Licensee’s Users’ Contributions.

c) To require Licensor’s employees to keep confidential the content of any of the Licensee’s Users’ Contributions which they may encounter during proactive and reactive maintenance of the Service and other diagnostic , remedial and developmental procedures.

8) INTELLECTUAL PROPERTY RIGHTS

a) The Service and all Intellectual Property Rights of whatever nature in the Service are and shall remain the property of the Licensor and the Licensee agrees to immediately notify the Licensor if it becomes aware of any infringement or any unauthorised use of the Service by any person.

b) The Licensor agrees that the Licensee may distribute, copy, or create derivative works (including but not limited to presentations, documents and emails) which include information and graphics generated by the Service but only for the purpose of carrying out the Licensee’s normal business, and only if the Licensor’s copyright notices are included in said derivative works, as set out below. In particular, the design and format of the Licensor’s graphical analyses are protected by international Copyright Law. Copyright Notice - derivative works as defined here shall contain the notice “Copyright © Thymometrics Limited <year>”, where <year> is replaced by the current four digit calendar year.

c) If the Licensee submits comments or ideas about the Service to the Licensor, the Licensee agrees that these become the Licensor’s property and that the Licensor may make free use of them in any way the Licensor sees fit. The Licensee acknowledges that, by acceptance of the Licensee’s submission, the Licensor does not waive any rights to use similar or related ideas previously known to or developed by the Licensor, the Licensor’s employees, agents or otherwise.

9) INTELLECTUAL PROPERTY INDEMNITY

a) The Licensor agrees to indemnify the Licensee against all actions, claims, proceedings, damages, costs and expenses arising from any actual or alleged infringement of Intellectual Property Rights arising from the Licensee’’s use of the Service anywhere in the world provided such use is in accordance with the terms of this agreement and that the Licensee promptly notifies the Licensor in writing of any such allegation.

b) At the Licensor’’s request and expense, the Licensee shall permit the Licensor to conduct all negotiations and litigation. The Licensee shall give all reasonable assistance and the Licensor shall pay the Licensee’’s reasonable costs and expenses so incurred.

c) The Licensor may, at its expense, modify or replace the Service to avoid any alleged or actual infringement and any modification or replacement must not affect the performance of the Service. If the Licensor is unable to modify or replace the Service, then the Licensee shall be entitled to a pro-rata refund according to the formula specified in the Order Form, whereupon this agreement shall immediately terminate.

d) This indemnity shall not apply to infringements arising directly from the combination of the Service with other items or Service not supplied by the Licensor.

10) WARRANTIES

a) Subject to the limitations and exclusions of liability set out below, the Licensor warrants that the Service will perform in accordance with the Service Description and the Service Documentation will provide adequate instructions to allow the Licensee to make proper use of the The Service.

b) The Licensor warrants that it shall use and adopt only good quality materials, techniques and standards in performing its obligations under this agreement with the standards of care, skill and diligence required of good computing practice.

c) The Licensor warrants that itself, its employees and agents shall take all reasonable precautions to ensure that the Service is free from all viruses that could have been detected by using the latest (at the date of despatch) commercially available virus detection software.

d) If within the Warranty Period the Licensor receives written notice from the Licensee of any breach of the warranties given in clause 10a then the Licensor shall at its own expense and within 60 days of receiving such notice remedy the defect in question.

e) The Licensor shall not be liable under the warranties given in clause 10a above if the the Service fails to conform to the said warranty because of any corruption, abuse or incorrect use of the the Service (including use of the Service with equipment or other software which is incompatible) or because of any unauthorised variation or modification to the the Service.

f) All other guarantees, representations and warranties of any kind, whether express or implied, including, without limitation, the implied warranties of satisfactory quality, merchantability and fitness for a particular purpose or ability to achieve a particular result are hereby excluded, so far as such exclusion or disclaimer is permitted under the applicable law.

g) The Licensor does not warrant that the operation of the Service will be uninterrupted or error free and the Licensee acknowledges and agrees that the existence of such errors or interruptions shall not constitute a breach of this agreement.

11) INDEMNITY

The Licensee indemnifies the Licensor and the Licensor’s employees, agents and affiliated companies from and against any claims, losses, liabilities and expenses arising from: (i) The Licensee’s use of the Service; (ii) The Licensee’s violation of any part of the Terms; (iii) The Licensee’s violation of any third-party rights; (iv) The Licensee’s violation of any law, rule or regulation of any country or region; (v) any action taken by the Licensee against any of the Licensee’s employees, whether or not as a result of use of the Service.

12) LIMITATION OF LIABILITY

a) Subject to clause 12c, in no event shall the Licensor be liable for any damages, including loss of business, loss of opportunity, loss of data, loss of profits or for any other indirect or consequential loss or damage whatsoever that is an indirect or secondary consequence of any act or omission of the Licensor whether such damages were reasonably foreseeable or actually foreseen or any person’s use of, or inability to use, the service, or from the Licensee’s identification howsoever determined as the author of any contribution.

b) Subject to clause 12c, the total liability of the Licensor to the Licensee under this agreement shall not exceed the sum for which the Licensor may carry comprehensive insurance cover pursuant to clause 13 below.

c) Nothing in this agreement shall exclude or limit the liability of the Licensor for fraudulent misrepresentation or for death or personal injury resulting from the negligence of the Licensor or its employees or agents.

13) INSURANCE

During the term of this agreement the Licensor may at its own expense maintain such insurances as required by any applicable law and as appropriate in respect of its obligations under this agreement with an insurance company of repute. The Licensor shall on request supply copies of the relevant certificates of insurance to the Licensee as evidence that such policies remain in force.

14) CONFIDENTIALITY, DATA AND SECURITY

a) The Licensor’s reputation depends on maintaining the Licensee’s privacy and the confidentiality and privacy of the Licensee’s employees. The Licensor’s Privacy and Data Protection Policy can be viewed at www.thymometrics.com.

b) By using the Service, the Licensee consent to the Licensee’s corporate data being transferred to and processed in the United Kingdom, the United States, or other country which the Licensor considers appropriate.

c) In order to fulfil the Licensor’s obligations to preserve Users’ anonymity, the Licensor may obscure certain visual information from displayed graphics, via pixellation, blurring, omission, displacement from true position or other obfuscatory methods.

d) The Licensor uses commercially reasonable technical and organisational measures designed to secure the Licensee’s corporate information, the personal details of the Licensee’s Users, and Users’ Contributions from accidental loss and unauthorised access, use or disclosure. However, the Licensor cannot guarantee that unauthorised third parties will never be able to defeat those measures. All Contributions and other provision of information to the Licensor are made at the Licensee’s and Users’ own risk.

e) The Licensor’s website may contain links to third-party websites, advertisers, or other service providers that are not owned or controlled by the Licensor. The Licensor has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or service.

f) Either party receiving information ("the Recipient") from the other marked "confidential" or which may reasonably be supposed to be confidential, including, without limitation, information contained in or presented by the Service, the Service Description and other information supplied by the Licensee or Licensor, shall not without the other’s prior written consent use such information except for the purposes of this agreement or disclose such information to any person other than to their own employees or agents who have a need to know.

g) Clause 14f shall not apply to information that is lawfully known to the Recipient at the time of disclosure or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is ordered to be disclosed to a regulatory body or a court of competent jurisdiction.

h) The Recipient shall ensure that any person referred to in clause 14f is bound by similar confidentiality terms to those in this clause 14.

i) The confidentiality terms in this clause 14 shall remain in full force and effect during the term of this agreement and upon the termination of the Licence or this agreement.

15) TERMINATION

a) If the Licensee commits a material breach or persistent breaches of this agreement, and in the case of a breach which is capable of being remedied, fails to remedy the breach within 14 days of written notice from the Licensor to do so, then the Licensor may terminate the Licence forthwith and without refund of any sums paid to the Licensor for this Licence on giving written notice to the Licensee.

b) Either party may terminate the Licence at any time by giving at least 28 days’ prior written notice to the other. Where notice is served by the Licensor, the Licensee shall be entitled to a pro-rata refund according to the formula specified on the Order Form. Where notice is served by the Licensee, no refund of any sums paid by the Licensee shall be due.

c) Upon termination of the Licence the Licensor shall immediately prevent access to the Service by the Licensee and its Users.

d) Any termination of the Licence or this agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in this agreement which is expressly or by implication intended to come into or continue in force on or after such termination.

16) FORCE MAJEURE

Neither party shall be liable to the other party for any delay or failure to perform any of its obligations under this agreement if the delay or failure results from events or circumstances outside its reasonable control, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party in writing of the nature and extent of such events. If such circumstances continue for a continuous period of more than 28 days, either party may terminate this agreement by written notice to the other party.

17) ASSIGNMENT

This agreement is personal to the parties and neither this agreement nor any rights, licences or obligations under it may be assigned by the Licensee without the prior written approval of the Licensor.

18) WAIVER

Failure or neglect by either party to exercise any of its rights or remedies under this agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of this agreement nor prejudice that party’s right to take subsequent action.

19) SEVERANCE

If any provision of this agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

20) NOTICES

Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the most recent email address, fax number or address notified to the other party, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.

21) ENTIRE AGREEMENT

a) This agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This agreement may be varied only by a document signed by both parties.

b) The Licensor may amend these Terms at any time by giving the Licensee 30 days’ notice by email or other written method.

22) GOVERNING LAW AND JURISDICTION

This agreement shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE 1

THE SERVICE

SERVICE DESCRIPTION

The Service is provided to Licensee and Users in the form of a set of software tools (“Employee Thymo”) hosted by a website on the World Wide Web, which may be accessed at any time during the effective period of this Licence from any suitable device and from any location, given an internet-connection.

The Employee Thymo provides three principal facilities (“Apps”) for continuously surveying the opinions of employees, performing analyses on these opinions, and engaging in anonymous conversation with employees;the Licensee may control access by specific Users to these Apps, which are as follows:

· Contribute: will be used anonymously by employees to record their views and comments, and to participate on their own behalf in anonymous discussions with another User acting on the Licensee’s behalf;

· Analysis: will be used by Users acting on the Licensee’s behalf to understand the quantity, nature, distribution and changes over time of employee views, through visualisations, graphs and statistics;

· Communicate: will be used by Users acting on the Licensee’s behalf to process incoming comments from employees, to participate in discussions with Users acting on their own behalf, and to initiate anonymous conversations with Users based on said Users’ views, and other criteria.

Sundry other facilities are provided for the Licensee to control various settings and for Users to join the Service, and to manage personal details and passwords.

DOC REFERENCE: SULA_002