Thymometrics Licence Agreement THM-LA0001-FR

THYMOMETRICS CORPORATE “FREE THYMO” LICENCE AGREEMENT

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

BY ACCEPTING THIS AGREEMENT AND BY SUBMITTING AN APPLICATION 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 “LICENSEE”, “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, “LICENSEE”, "YOU" AND "YOUR" SHALL REFER TO YOURSELF. 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 14^th February 2018.

Table of Contents

1) Definitions

2) Grant of Licence

3) Licence

4) Payment

5) Licence Term

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 Confidentiality, Data and Security

14) Termination

15) Force Majeure

16) Assignment

17) Waiver

18) Severance

19) Notices

20) Entire Agreement

21) 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 Unit 1, Cambridge House, Camboro Business Park, Oakington Road, Girton, Cambridge, CB3 0QH, United Kingdom;

b) "Service" means the service provided to You from time to time in accordance with clause 3 by Licensor’s “Thymometrics” software platform, hosted at https://thymometrics.com;

d) “Application Form” means a document, or other means including that of an online form, by which Licensee may apply to Licensor to use the Service under the terms of this Agreement. Application Forms and the information therein shall be deemed incorporated herein by reference.

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

f) "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;

g) "Licence" means a record kept by the Licensor of the Licensee’s acceptance of these Terms together with the information provided by You in Your Application Form, 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 for such duration as shall be determined solely by Licensor;

h) "License", "Licensing", "Licenses" or "Licensed" refers to the act of obtaining a Licence by agreeing to these Terms, submitting an Application Form and securing Licensor’s acceptance of said Application Form;

i) "User Licence" means that aspect of the Service 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. The maximum number of User Licences that may be acquired by Licensor is 25 (twenty five), although this number may be varied by Licensor in accordance with clause 3b. Users are required to affirm a separate agreement with the Licensor;

j) "Supplement" means a sum of money paid occasionally by the Licensee to the Licensor for the mutually-agreed provision of additional Service facilities or additional support from Licensor or additional User Licences or any other additional benefit;

k) "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 express terms of this Agreement and not further or otherwise.

3) LICENCE

a) The Licensee shall have the right to use the Service both to provide the Licensee’s employees with the means to anonymously record 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.

b) The Licensor shall have the right at any time and without notice and at its sole discretion and irrespective of the Service provided to other licensees of the Service to alter the Service provided to Licensee as follows:

i) to add to, vary or withdraw from the Service any application, service, facility or feature, through its de facto provision or lack thereof in the Service,

ii) to amend the number of User Licences associated with the Licence, and

iii) to suspend or terminate Licensee’s access to the Service entirely.

c) The Licensor shall be under no obligation whatsoever to provide to Licensee any reason for amending, withdrawing or terminating (as applicable) any aspects of the Service referenced in clause 3b.

4) PAYMENT

There is no charge to Licensee for using the Service according to this Agreement, which may be varied at any time in accordance with clause 3. A Supplement may be payable by Licensee in respect of any subsequent variance to this Agreement made between Licensor and Licensee.

5) LICENCE TERM

The Licence shall commence on the date on which Licensor accepts Licensee’s Application Form and shall continue until terminated in accordance with the provisions of this Agreement.

6) LICENSEE’S UNDERTAKINGS

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

i) Licensee undertakes not to attempt to acquire from Licensor personal details provided to the Licensor by the Licensee’s Users, including their private email address and their passwords;

ii) Licensee agrees that any and all data provided to the Licensor and made available through the Service 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 hard 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 acquisition 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 facilitate this activity;

vii) Unless applicable law has been broken, the Licensee’s sole remedy in respect of the breaking by any User of any of 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;

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 made in the capacity of a private individual acting to represent User’s personal views. Licensee shall be free to attempt to identify Users who breach Licensee’s terms and conditions of employment and to take action according to Licensee’s own internal policies and procedures from time to time in force provided such breach occurs as the result of the User’s Contributions to the Service in which User is acting in a professional capacity to represent the Licensee;

x) In the event the Licensee believes a User has breached the terms of their employment by submitting inappropriate, offensive, discriminatory, threatening or similar unacceptable messages the Licensee can request the Licensor to remove the message or messages and to bar the User from using the service. The Licensor shall review all requests promptly and will action as soon as practically possible;

xi) 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;

xii) 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;

xiii) 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;

xiv) 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;

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 Service is provided on an "as is" basis and its use is wholly at the Licensee’s own risk. Clause 10 states the entirety of the warranty in respect of the Service.

xvii) Not to copy, adapt, modify or translate any documentation or help text pertaining to the Service without the prior written consent of the Licensor;

xviii) 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. For the avoidance of doubt, this means undertaking reasonable measures to keep any passwords and security access codes safe and accessible only to authorised personnel.

c) The Licensee warrants that Licensee’s business is not in competition with that of Licensor, and Licensee undertakes not to discuss with or to demonstrate to any person not being an employee or agent of Licensee (including but not limited to any competitors of Licensor) any aspect of the Service.

d) The Licensee undertakes not to enable as a User any person not being an employee or agent of Licensee.

e) The Licensee agrees that from 25th May 2018 onwards Licensee’s data may be processed in accordance with the European Union’s “General Data Protection Regulations”, and further agrees that such data processing shall comply with the public Data Contract which Licensor will make available on its website from that date.

f) The Licensee agrees that Licensor may contact Licensee for any reason relating to Licensor’s provision of or Licensee’s past, current or future use of the Service.

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 that 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;

d) Not to provide to the Licensee any personal details provided to the Licensor by the Licensee’s Users, including their private email address and their passwords.

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, only distributing them to employees of Licensee, 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

Licensor warrants that Licensor is unaware of the Service infringing or having infringed any Intellectual Property belonging to a third party. Notwithstanding this, in any event the Licensor provides no indemnity to the Licensee whatsoever against any 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 whether or not such use is in accordance with the terms of this Agreement. Use of the Service is entirely at Licensee’s own risk.

10) WARRANTIES

The Service is provided “as is” without any kind of warranty, whether express or implied, 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. 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.

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 directly from: (i) The Licensee’s violation of any part of the Terms; (ii) The Licensee’s violation of applicable law; (iii) any action taken by the Licensee against any of the Licensee’s employees 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 either arising from Licensee’s use of the Service or being 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 £0.01 (one penny Sterling).

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) 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 consents to the Licensee’s corporate data being transferred to and processed in Western Europe. Licensor is registered with the United Kindom’s Information Commisioner’s Office (registration number Z3563833) and undertakes to manage personal data in compliance with the United Kingdom’s Data Protection Act 1998 and the European Union’s General Data Protection Regulation in force from 25th May 2018. From 25th May 2018, Licensor will process data in accordance with the General Data Protection Regulations, and a copy of the public Data Contract pertaining thereto will be viewable on Licensor’s website.

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 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 13f shall not apply to information that can be proved to be 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 13f is bound by similar confidentiality terms to those in this clause 13.

i) The confidentiality terms in this clause 13 shall remain in full force and effect during the term of this agreement and upon the termination of the Licence or this agreement.

14) TERMINATION

a) Licensee may terminate the Licence at any time by giving written notice to Licensor. Licensor may terminate the Licence at any time without giving notice. Upon termination of the Licence the Licensor shall as soon as is practical prevent access to the Service by the Licensee and its Users.

b) 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.

15) 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.

16) 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, which shall not be unreasonably withheld.

17) 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.

18) 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.

19) NOTICES

Any notice to be given by either party to the other may be sent by either email or recorded delivery to the most recent email or postal 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 recorded delivery shall be deemed to be served 2 days following the date of posting.

20) 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 at any time by a document signed by both parties.

b) In addition, the Licensor may amend this Agreement at any time by giving the Licensee 30 (thirty) days’ notice by email or letter; Licensee’s continued use of the Service after the date notified shall constitute acceptance of any amendments.

21) 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.

DOC REFERENCE: THM-LA0002-FR