GMA-ONLINE TERMS AND
CONDITIONS
These terms and conditions of supply shall be deemed accepted by
the Customer either on first use of the Services or when confirmed by
electronic communication to the Supplier, whichever is the soonest.
Interpretation
The definitions and rules of
interpretation in this clause shall apply.
Agreement:
the
agreement made between the parties to which the Documentation and
these terms are appended.
Billing
Days (and each one a Billing Day): the
last day of February, May, August and November in any year.
Business
Day: a day other than a Saturday, Sunday or
public holiday in England when banks in London are open for business.
Confidential
Information: information that is proprietary
or confidential and is either clearly labelled as such or identified
as Confidential Information in clause 9.5.
Customer:
the
party seeking to engage with the Supplier under the Agreement.
Customer
Data: the data inputted by or at the
instigation of the Customer, for the purpose of using the Services.
Documentation:
the documents made available to the Customer by the Supplier which
set out a description of the Services, the user instructions for the
Services, the tests and other materials underlying the Services and
any reports generated through the Customer’s use of the
Services.
Initial
Subscription Term: the initial term for the
supply of Services starting on the date of first use of the Services
and ending on the next occurring Billing Day.
Normal
Business Hours: 9.00 am to 6.00 pm local UK
time, each Business Day.
Renewal
Period: the period described in clause 12.1.
Services:
the subscription services provided by the Supplier to the Customer as
more particularly described in the Documentation.
Software:
the online software applications provided by the Supplier as part of
the Services.
Subscription
Fees: the subscription fees payable by the
Customer to the Supplier for the User Subscriptions, as set out in
the Documentation.
Subscription
Term: has the meaning given in clause 12.1
(being the Initial Subscription Term together with any subsequent
Renewal Periods).
Supplier:
Psychometric
Research & Development Limited who own the publishing rights to
the Documentation (by permission of S F Blinkhorn MA PhD CPsychol
FBPsS proprietor of the copyright therein) and Synsemetrics Limited
who operate the Services.
Virus:
any thing or device (including any software, code, file or programme)
which may: prevent, impair or otherwise adversely affect the
operation of any computer software, hardware or network, any
telecommunications service, equipment or network or any other service
or device; prevent, impair or otherwise adversely affect access to or
the operation of any programme or data, including the reliability of
any programme or data (whether by re-arranging, altering or erasing
the programme or data in whole or part or otherwise); or adversely
affect the user experience, including worms, trojan horses, viruses
and other similar things or devices.
Subscription
Subject to the Agreement, the
Documentation and these terms, the Supplier hereby grants to the
Customer a non-exclusive, non-transferable right and licence to use
and enable use of the Services in the manner set out in the
Documentation during the Subscription Term (not for general re-sale
without the express written consent of the Supplier).
The Customer undertakes that:
it shall keep secure any
login credential including passwords issued to it for the use of
the Services and that it shall ensure that all permitted third
party users of the Services keep such login credentials
confidential;
it shall only use the
Services for its own business purposes, or issue login credentials
to properly trained and qualified third parties;
it
shall permit the Supplier the right to audit the direct use of the
Services by the Customer and any use of the Services by permitted
third party users.
The Customer and its permitted
users shall not access, store, distribute or transmit any Viruses,
or any material during the course of its use of the Services that:
is unlawful, harmful,
threatening, defamatory, obscene, infringing, harassing or
racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit
images;
promotes unlawful violence;
is discriminatory based on
race, gender, colour, religious belief, sexual orientation,
disability; or
in a manner that is otherwise
illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice
to its other rights to the Customer, to disable the Customer's access
to any hosted material that breaches the provisions of this clause.
The Customer shall not:
except as may be allowed by
any applicable law which is incapable of exclusion by agreement
between the parties:
and except to the extent
expressly permitted hereunder, attempt to copy, modify,
duplicate, create derivative works from, frame, mirror,
republish, download, display, transmit, or distribute all or any
portion of the Software and/or Documentation (as applicable) in
any form or media or by any means; or
attempt to reverse compile,
disassemble, reverse engineer or otherwise reduce to
human-perceivable form all or any part of the Software; or
access all or any part of the
Services and Documentation in order to build a product or service
which competes with the Services and/or the Documentation; or
subject to clause 18.1,
license, sell, rent, lease, transfer, assign, or otherwise
commercially exploit, or otherwise make the Services and/or
Documentation available for exploitation by any third party, or
attempt to obtain, or assist
third parties in obtaining, access to the Services and/or
Documentation, other than as provided under this clause 2; and
The Customer shall use all
reasonable endeavours to prevent any unauthorised access to, or use
of, the Services and/or the Documentation and, in the event of any
such unauthorised access or use, promptly notify the Supplier.
Services
The Supplier shall, during the
Subscription Term, provide the Services and supply the
Documentation to the Customer on and subject to these terms. The
Supplier does not provide advice or professional guidance in
relation to the Services. The Customer shall carry out its own due
diligence in relation to the nature of the Services and their
appropriate use.
The Supplier shall use
commercially reasonable endeavours to make the Services available
24 hours a day, seven days a week.
Each authorised use of the
Services shall constitute a distinct and separate contract for
services.
The Supplier will, as part of
the Services and at no additional cost to the Customer, provide the
Customer with the Supplier's standard customer support services
during Normal Business Hours.
Customer
data
The Customer shall own all
right, title and interest in and to all of the Customer Data and
shall have sole responsibility for the legality, reliability,
integrity, accuracy and quality of the Customer Data.
The Supplier shall follow its
standard archiving procedures for Customer Data. In the event of
any loss or damage to Customer Data, the Customer's sole and
exclusive remedy shall be for the Supplier to use reasonable
commercial endeavours to restore the lost or damaged Customer Data
from the latest back-up of such Customer Data maintained by the
Supplier in accordance with its standard archiving procedure. The
Supplier shall not be responsible for any loss, destruction,
alteration or disclosure of Customer Data caused by any third party
(except those third parties sub-contracted by the Supplier to
perform services related to Customer Data maintenance and back-up).
The Customer acknowledges that
the Supplier does not, as part of its operations in providing the
Services, collect personal data for its own purposes. All data
collected as a result of the use of the Services is stored
anonymously by the Supplier. However, the Supplier shall, in
providing the Services, comply with its legal and statutory
obligations relating to the privacy and security of any personal
data provided by the Customer’s service users. Anonymised
data may be used by the Supplier to improve its services or for
general dissemination of anonymised analysis to the relevant
industry and to Customers.
If the Supplier processes any
personal data on the Customer's behalf when performing its
obligations, the parties record their intention that the Customer
shall be the data controller and the Supplier shall be a data
processor and in any such case:
the Customer acknowledges and
agrees that the personal data may be transferred or stored outside
the EEA in order to carry out the Services and the Supplier's
other obligations;
the Customer shall ensure
that the Customer is entitled to transfer the relevant personal
data to the Supplier so that the Supplier may lawfully use,
process and transfer the personal data in accordance with these
terms on the Customer's behalf;
the Customer shall ensure
that the relevant third parties have been informed of, and have
given their consent to, such use, processing, and transfer as
required by all applicable data protection legislation;
the Supplier shall process
the personal data only in accordance with these terms, the
Agreement and any lawful instructions reasonably given by the
Customer from time to time; and
each party shall take
appropriate technical and organisational measures against
unauthorised or unlawful processing of the personal data or its
accidental loss, destruction or damage.
Supplier's
obligations
The
Supplier undertakes that the Services will be performed
substantially in accordance with the Documentation and with
reasonable skill and care. Outcomes from the Customer’s use
of the Services shall be delivered to the electronic location(s) as
may be notified to the Supplier and agreed from time to time.
The undertaking at clause 5.1
shall not apply to the extent of any non-conformance which is
caused by use of the Services contrary to the Supplier's
instructions, or modification or alteration of the Services by any
party other than the Supplier or the Supplier's duly authorised
contractors or agents. If the Services do not conform with the
foregoing undertaking, the Supplier will, at its expense, use all
reasonable commercial endeavours to correct any such
non-conformance promptly, or provide the Customer with an
alternative means of accomplishing the desired performance. Such
correction or substitution constitutes the Customer's sole and
exclusive remedy for any breach of the undertaking set out in
clause 5.1. Notwithstanding the foregoing, the Supplier:
does not warrant that the
Customer's use of the Services will be uninterrupted or
error-free; or that the Services, Documentation and/or the
information obtained by the Customer through the Services will
meet the Customer's requirements; and
is not responsible for any
delays, delivery failures, or any other loss or damage resulting
from the transfer of data over communications networks and
facilities, including the internet, and the Customer acknowledges
that the Services and Documentation may be subject to limitations,
delays and other problems inherent in the use of such
communications facilities.
Nothing in these terms shall
prevent the Supplier from entering into similar agreements with
third parties, or from independently developing, using, selling or
licensing documentation, products and/or services which are similar
to those provided hereunder.
The
Supplier warrants that it has and will maintain all necessary
licences, consents, and permissions necessary for the performance
of its obligations.
Customer's
obligations
The Customer shall:
provide the Supplier with:
all necessary co-operation;
and
all necessary access to such
information as may be required by the Supplier;
in order to provide the Services, including but not limited to
Customer Data, security access information and technical information
required for any configuration services;
comply with all applicable
laws and regulations with respect to its activities hereunder;
carry out all other Customer
responsibilities set out in these terms and in the Documentation
in a timely and efficient manner. In the event of any delays in
the Customer's provision of such assistance as agreed by the
parties, the Supplier may adjust any agreed timetable or delivery
schedule as reasonably necessary;
ensure that it uses the
Services and the Documentation in accordance with these terms;
obtain and shall maintain all
necessary licences, consents, and permissions necessary for the
Supplier, its contractors and agents to perform their obligations
hereunder, including without limitation the Services;
ensure that its network and
systems comply with the relevant specifications provided by the
Supplier from time to time;
be solely responsible for
informing all users of the Services the technical specification of
any equipment required to use the Services (including but not
limited to providing correct information in relation to the
delivery of outcomes from the use of the Services); and
be solely responsible for
procuring and maintaining its network connections and
telecommunications links from its systems to the Supplier's data
centres, and all problems, conditions, delays, delivery failures
and all other loss or damage arising from or relating to the
Customer's (or any users enabled by the Customer) network
connections or telecommunications links or caused by the internet.
Charges
and payment
The
Customer shall pay the Subscription Fees to the Supplier in
accordance with this clause 7 and the Documentation.
The Supplier shall invoice the
Customer:
in arrears at the end of the
Initial Subscription Term; and
subject to clause 12.1, on
each Billing Day thereafter for the Subscription Fees payable in
respect of the previous Renewal Period,
and the Customer shall pay each invoice within 30 days after the date
of such invoice (time being of the essence).
If the Supplier has not
received payment within 7 days after the due date, and without
prejudice to any other rights and remedies of the Supplier:
the Supplier may, without
liability to the Customer, disable the Customer's login data,
passwords, account and access to all or part of the Services and
the Supplier shall be under no obligation to provide any or all of
the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a
daily basis on such due amounts at an annual rate equal to 2% over
the then current base lending rate of Barclays Bank from time to
time, commencing on the due date and continuing until fully paid,
whether before or after judgment.
All amounts and fees stated or
referred to:
shall be payable in pounds
sterling;
are, subject to clause 11.4(b),
non-cancellable and non-refundable;
are exclusive of value added
tax, or other local sales taxes. Where applicable (e.g. UK) value
added tax shall be added to the Supplier's invoice(s) at the
appropriate rate. Where local sales tax or value added tax is
accounted for by the purchaser of supplies the Customer shall make
its own arrangements for payment, after providing the Supplier
with appropriate information.
The Supplier shall be entitled
to increase the Subscription Fees at the start of each Renewal
Period upon 30 days' prior notice to the Customer.
Proprietary
rights
The Customer acknowledges and
agrees that the Supplier and/or its licensors own all intellectual
property rights in the Services and the Documentation. Except as
expressly stated herein, the Supplier does not grant the Customer
any rights to, or in, patents, copyright, database right, trade
secrets, trade names, trademarks (whether registered or
unregistered), or any other rights or licences in respect of the
Services or the Documentation.
To the extent that the
Customer provides input to supplement the content of the Services,
the Customer hereby confirms and warrants that it owns all
intellectual property rights and title to provide said content (or
a licence for its use in this manner) and shall indemnify and keep
the Supplier indemnified, without limitation, against all claims,
damages, cost and expense arising from its use in the manner
requested by the Customer.
The Supplier confirms that it
has all the rights in relation to the Services and the
Documentation that are necessary to grant all the rights it
purports to grant under, and in accordance with, these terms.
Confidentiality
Each party may be given access
to Confidential Information from the other party in order to
perform its obligations. A party's Confidential Information shall
not be deemed to include information that:
is or becomes publicly known
other than through any act or omission of the receiving party;
was in the other party's
lawful possession before the disclosure;
is lawfully disclosed to the
receiving party by a third party without restriction on
disclosure;
is independently developed by
the receiving party, which independent development can be shown by
written evidence; or
is required to be disclosed
by law, by any court of competent jurisdiction or by any
regulatory or administrative body.
Each party shall hold the
other's Confidential Information in confidence and, unless required
by law, not make the other's Confidential Information available to
any third party, or use the other's Confidential Information for
any purpose other than as set out in these terms.
Each party shall take all
reasonable steps to ensure that the other's Confidential
Information to which it has access is not disclosed or distributed
by its employees or agents in violation of these terms.
Neither party shall be
responsible for any loss, destruction, alteration or disclosure of
Confidential Information caused by any third party.
The
Customer acknowledges that details of the Services, and the results
of any performance tests of the Services, constitute the Supplier's
Confidential Information.
The Supplier acknowledges that
the Customer Data is the Confidential Information of the Customer.
The provisions of this clause
9 shall survive termination of the Agreement, however arising.
Indemnity
The Customer shall defend,
indemnify and hold harmless the Supplier against claims, actions,
proceedings, losses, damages, expenses and costs (including without
limitation court costs and reasonable legal fees) arising out of or
in connection with the Customer's use of the Services and/or
Documentation, provided that:
the Customer is given prompt
notice of any such claim;
the Supplier provides
reasonable co-operation to the Customer in the defence and
settlement of such claim, at the Customer's expense; and
the Customer is given sole
authority to defend or settle the claim.
Save for
the circumstances expressly stated in clause 8.2, the Supplier
shall defend the Customer, its officers, directors and employees
against any claim that the Services or Documentation infringes any
United Kingdom patent, copyright, trade mark, database right or
right of confidentiality, and shall indemnify the Customer for any
amounts awarded against the Customer in judgment or settlement of
such claims, provided that:
the Supplier is given prompt
notice of any such claim;
the Customer provides
reasonable co-operation to the Supplier in the defence and
settlement of such claim, at the Supplier's expense; and
the Supplier is given sole
authority to defend or settle the claim.
In the defence or settlement
of any claim, the Supplier may procure the right for the Customer
to continue using the Services, replace or modify the Services so
that they become non-infringing or, if such remedies are not
reasonably available, terminate the Services, on 2 Business Days'
notice to the Customer, without any additional liability or
obligation to pay liquidated damages or other additional costs to
the Customer.
In no event shall the
Supplier, its employees, agents and sub-contractors be liable to
the Customer to the extent that the alleged infringement is based
on:
a modification of the
Services or Documentation by anyone other than the Supplier; or
the Customer's use of the
Services or Documentation in a manner contrary to the instructions
given to the Customer by the Supplier; or
the Customer's use of the
Services or Documentation after notice of the alleged or actual
infringement from the Supplier or any appropriate authority.
The foregoing and clause 11.4(b)
states the Customer's sole and exclusive rights and remedies, and
the Supplier's (including the Supplier's employees', agents' and
sub-contractors') entire obligations and liability, for
infringement of any patent, copyright, trade mark, database right
or right of confidentiality.
Limitation
of liability
This clause 11 sets out the
entire financial liability of the Supplier (including any liability
for the acts or omissions of its employees, agents and
sub-contractors) to the Customer:
arising under or in
connection with these terms;
in respect of any use made by
the Customer of the Services and Documentation or any part of
them; and
in respect of any
representation, statement or tortious act or omission (including
negligence) arising under or in connection with these terms.
Except
as expressly and specifically provided in these terms:
the Customer assumes sole
responsibility for results obtained from the use of the Services
and the Documentation by the Customer, and for conclusions drawn
from such use. The Supplier shall have no liability for any damage
caused by errors or omissions in any information, instructions or
scripts provided to the Supplier by the Customer in connection
with the Services, or any actions taken by the Supplier at the
Customer's direction;
all warranties,
representations, conditions and all other terms of any kind
whatsoever implied by statute or common law are, to the fullest
extent permitted by applicable law, excluded from these terms; and
the Services and the
Documentation are provided to the Customer on an "as is"
basis.
Nothing
in these terms excludes the liability of the Supplier:
for death or personal injury
caused by the Supplier's negligence; or
for fraud or fraudulent
misrepresentation.
Subject to clause 11.2 and
clause 11.3:
the Supplier shall not be
liable whether in tort (including for negligence or breach of
statutory duty), contract, misrepresentation, restitution or
otherwise for any loss of profits, loss of business, depletion of
goodwill and/or similar losses or loss or corruption of data or
information, or pure economic loss, or for any special, indirect
or consequential loss, costs, damages, charges or expenses however
arising under these terms; and
the Supplier's total
aggregate liability in contract (including in respect of the
indemnity at clause 10.2 but excluding liability arising under
clause 11.4(c)), tort (including negligence or breach of statutory
duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of its
obligations under these terms shall be limited to £10,000.
the
Supplier’s liability in relation to any failure of the
Services attributable to its actions or omissions, shall be
limited to the actual price paid by the Customer for the part of
the Services at issue.
Term and
termination
The
Services shall, unless otherwise terminated as provided in this
clause 12, commence on first use of the Services and shall continue
for the Initial Subscription Term and, thereafter, shall be
automatically renewed for successive three-monthly periods (each a
Renewal
Period), unless:
either party notifies the
other party of termination, in writing, at least 7 days before the
end of the Initial Subscription Term or any Renewal Period, in
which case the Services shall terminate upon the expiry of the
applicable Initial Subscription Term or Renewal Period; or
otherwise terminated in
accordance with these terms;
and the Initial Subscription Term together with any subsequent
Renewal Periods shall constitute the Subscription
Term.
Without affecting any other
right or remedy available to it, either party may terminate the
provision of the Services with immediate effect by giving written
notice to the other party if:
the other party commits a
material breach of any of these terms which breach is irremediable
or (if such breach is remediable) fails to remedy that breach
within a period of 7 days after being notified in writing to do
so;
the
other party suspends, or threatens to suspend, payment of its
debts or is unable to pay its debts as they fall due or admits
inability to pay its debts or is deemed unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986;
the other party commences
negotiations with all or any class of its creditors with a view to
rescheduling any of its debts, or makes a proposal for or enters
into any compromise or arrangement with its creditors other than
for the sole purpose of a scheme for a solvent amalgamation of
that other party with one or more other companies or the solvent
reconstruction of that other party;
a petition is filed, a notice
is given, a resolution is passed, or an order is made, for or in
connection with the winding up of that other party other than for
the sole purpose of a scheme for a solvent amalgamation of that
other party with one or more other companies or the solvent
reconstruction of that other party;
an application is made to
court, or an order is made, for the appointment of an
administrator, or if a notice of intention to appoint an
administrator is given or if an administrator is appointed, over
the other party;
the holder of a qualifying
floating charge over the assets of that other party has become
entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to
appoint a receiver over the assets of the other party or a
receiver is appointed over the assets of the other party;
a
creditor or encumbrancer of the other party attaches or takes
possession of, or a distress, execution, sequestration or other
such process is levied or enforced on or sued against, the whole
or any part of the other party's assets and such attachment or
process is not discharged within 14 days;
any event occurs, or
proceeding is taken, with respect to the other party in any
jurisdiction to which it is subject that has an effect equivalent
or similar to any of the events mentioned in clause 12.2(b) to
clause 12.2(h) (inclusive);
the other party suspends or
ceases, or threatens to suspend or cease, carrying on all or a
substantial part of its business.
On termination of the Services
for any reason:
all licences granted shall
immediately terminate;
the Customer shall and shall
ensure that each of its permitted users shall make no further use
of the Services, or any Documentation;
the Supplier shall respond to
any requests for the delivery to the Customer of Customer Data on
a case by case basis. The Supplier shall use reasonable commercial
endeavours to deliver its response within a reasonable time of its
receipt of such a request; and
any rights, remedies,
obligations or liabilities of the parties that have accrued up to
the date of termination, including the right to claim damages in
respect of any breach of the agreement which existed at or before
the date of termination shall not be affected or prejudiced.
Force
majeure
The Supplier shall have no liability to the Customer if it is
prevented from or delayed in performing its obligations, or from
carrying on its business, by acts, events, omissions or accidents
beyond its reasonable control, including, without limitation,
strikes, lock-outs or other industrial disputes (whether involving
the workforce of the Supplier or any other party), failure of a
utility service or transport or telecommunications network, act of
God, war, riot, civil commotion, malicious damage, compliance with
any law or governmental order, rule, regulation or direction,
accident, breakdown of plant or machinery, fire, flood, storm or
default of suppliers or sub-contractors, provided that the Customer
is notified of such an event and its expected duration.
Waiver
No failure or delay by a party to exercise any right or remedy
provided hereunder or by law shall constitute a waiver of that or any
other right or remedy, nor shall it prevent or restrict the further
exercise of that or any other right or remedy. No single or partial
exercise of such right or remedy shall prevent or restrict the
further exercise of that or any other right or remedy.
Rights
and remedies
Except as expressly provided, the rights and remedies provided are in
addition to, and not exclusive of, any rights or remedies provided by
law.
Severance
If any provision (or part of a
provision) is found by any court or administrative body of
competent jurisdiction to be invalid, unenforceable or illegal, the
other provisions shall remain in force.
If any invalid, unenforceable
or illegal provision would be valid, enforceable or legal if some
part of it were deleted, the provision shall apply with whatever
modification is necessary to give effect to the commercial
intention of the parties.
Entire
agreement
These terms and all documents
referred to, constitute the whole agreement between the parties and
supersede any previous arrangement, understanding or agreement
between them relating to the subject matter they cover.
Each of the parties
acknowledges and agrees that in agreeing these terms it does not
rely on any undertaking, promise, assurance, statement,
representation, warranty or understanding (whether in writing or
not) of any person relating to the subject matter of these terms,
other than as expressly set out herein.
Assignment
The
Customer shall not, without the prior written consent of the
Supplier, assign, transfer, charge, sub-contract or deal in any
other manner with all or any of its rights or obligations set out
in these terms.
The Supplier may at any time
assign, transfer, charge, sub-contract or deal in any other manner
with all or any of its rights or obligations under these terms.
No
partnership or agency
Nothing in these terms is intended to or shall operate to create a
partnership between the parties, or authorise either party to act as
agent for the other, and neither party shall have the authority to
act in the name or on behalf of or otherwise to bind the other in any
way (including, but not limited to, the making of any representation
or warranty, the assumption of any obligation or liability and the
exercise of any right or power).
Notices
Any notice required to be
given under these terms shall be delivered by email or otherwise
any agreed electronic means. Where previously agreed, the parties
may deliver written notices by hand or send them by pre-paid
first-class post or recorded delivery post to the other party at
its registered office address, or such other address as may have
been notified by that party for such purposes.
A notice delivered by
electronic means shall be deemed received on opening, or if
delivery is not during the recipient’s business hours at 9am
on the first Business Day following it being sent. A notice
delivered by hand shall be deemed to have been received when
delivered (or if delivery is not in business hours, at 9 am on the
first Business Day following delivery). A correctly addressed
notice sent by pre-paid first-class post or recorded delivery post
shall be deemed to have been received at the time at which it would
have been delivered in the normal course of post.
Governing
law
These terms and any dispute or claim arising out of or in connection
with them or their subject matter (including non-contractual disputes
or claims) shall be governed by and construed in accordance with the
law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales
shall have exclusive jurisdiction to settle any dispute or claim
arising out of or in connection with these terms or their subject
matter (including non-contractual disputes or claims).