Terms and Conditions
Last updated: 16 September 2022
“Agreement” means these Terms and Conditions, the Order Form and any Service Agreement elements contained therein.
“Applicable Law” means any legally binding obligation applicable to a party, including statutes, rules, regulations, codes, court rulings, or any other binding requirement.
“Audiem”, “we” “us”, or “our” means Workplace Advantage Ltd. (trading as Audiem), with its registered office at White House Farm, West Rounton, Northallerton, DL6 2LW, with company number 10976073 and VAT number 412702635.
“Audiem Data” means any data resulting from the processing of Client data to make sense of and/or generate insights from it, or any other proprietary data that is related to any services we offer.
“Author” means a person that provides textual (Viewpoint) and numerical or categorical (metadata) content data from, or relating to, a Client organisation.
“Client” means the managing organisation commissioning Audiem to either gather data on their behalf and/or generate insights from Author content.
“Client Data” means any data generated by the Client and/or their Authors that is provided to us for processing using our tools, or that we collect using our tools on their behalf.
“Exported Data” means Audiem Data that is exported or downloaded from our systems.
“Viewpoint” is defined as a discrete piece of textual data (such as a survey response, intranet post, helpdesk comment etc.) from one respondee in response to one prompt for feedback.
“Order Form” means an ordering document or online order specifying the Services that we agree to provide to you and any Third Party Services (as applicable).
“Professional Services” means our training, implementation, or other Professional Services.
“Services” means the services that we agree to provide to you, including any Professional Services.
“Term” is defined in section 7.1.
“Third Party Services” means the products or services provided to you by anybody other than us.
“Client User” means an individual that you (or your nominated parties) have authorised to use our Services.
“you” or “Customer” means the party identified on an Order Form as a customer.
This Agreement governs your use of our Services and any information provided to you resulting from your use of those Services. The Services will be set out in an agreed Order Form (and we will not provide any Services except as agreed on an Order Form). The Services are subject to the terms of this Agreement.
We warrant that during the Term we will:
We will provide the Services in accordance with the Order Form and any supplemental scope of work. We exclude all liability for delays in performance that are due to your failure to provide what we need to complete the Professional Services.
An Order Form may contain obligations on us to provide to you our Services and obligations on a third party to provide to you Third Party Services. The obligation to provide our Services creates a contract between us (as principal) and you (and that contract is this Agreement). The obligation to provide Third Party Services creates a contract between the third party (as principal) and you (to provide Third Party Services to you on the terms that are in place between you and the third party). We are only responsible to you for our Services and not any Third Party Services. We or a third party may send you an Order Form.
You:
You will not:
You are responsible for ensuring that any user IDs and passwords required for your Users to use Services are kept safe and confidential. You will promptly notify us upon discovery if the security of a user ID or password may have been compromised.
You will not:
A licensor or Applicable Law may require us to remove Audiem Data from our Services. In such cases, we will notify you of the impacted data and you will promptly remove the same Exported Data from your systems, whether during or after the Term.
You will pay the fees for our Services set out in any Order Form. Except as otherwise specified, the fees are based on the Services set out in the Order Form and not on actual usage. The Services set out in the Order Form cannot be decreased during the relevant Term. If you sign an Order Form that a third party sends to you, you will pay the fees for our Services directly to the third party, who will collect the amounts due to us on our behalf. If you sign an Order Form that we send to you and that contains Third Party Services, you will pay us the fees for our Services and Third-Party Services (although we collect the fees for Third Party Services as collecting agent only on behalf of the third party).
You will provide us with the information we reasonably require to invoice you. If you pay the fees late, we may charge you interest at 1.5% over the applicable base rate of our principal bankers compounded monthly, or any higher amount allowed by Applicable Law. A third party may also charge you interest on late fees owed for Third Party Services.
The fees are exclusive of legally applicable taxes, levies, duties or similar governmental assessments, including goods and services, value-added, and sales taxes (collectively, “Taxes”). If we are legally required to pay or collect Taxes for which you are responsible, we (or a third party) will invoice you and you will pay that amount unless you provide us (or a third party) with a valid tax exemption certificate by the appropriate taxing authority.
“Confidential Information” means any information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is expressly marked as confidential or that a reasonable person under the circumstances would understand to be confidential. Our Confidential Information includes Audiem Data, trade secrets, non-public copyrighted materials, our product roadmap, and this Agreement. Confidential Information does not include any information that:
From the effective date of this Agreement until two years after the end of the Term, each party will hold in strict confidence, and will not use other than for the purposes of performing its obligations under this Agreement and/or using or supplying the Services, all Confidential Information of the other party. Nothing in this section 5 prevents the Receiving Party from disclosing the Confidential Information of the Disclosing Party to its corporate affiliates, legal advisers, accountants, or other professional advisers where required (collectively, “Permitted Recipients”), provided that the party so disclosing will remain responsible for its obligations and for the Permitted Recipients’ use (and any disclosure) of the Confidential Information.
We, or our licensors, own all intellectual property rights in the Services, including Audiem Data and Queries that we generate or write. Except as expressly stated otherwise in this Agreement, no one is granted any rights to or interest of any kind in our intellectual property rights.
Upon your payment of the fees for any deliverable from Professional Services (specified as such on an Order Form), you will retain all ownership rights to copyrightable works, work product, or other materials we created for you as part of those Professional Services; provided that if the deliverable contains Audiem Data, then the Audiem Data in the deliverable is granted to you under a worldwide, non-exclusive, non-transferable, royalty-free licence to use the deliverable in accordance with this Agreement.
We grant to you a worldwide, non-exclusive, non-transferable, royalty-free, licence to use the Exported Data in accordance with this Agreement.
You grant to us, and you undertake to procure that your Users grant to us, a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your Users arising out of your use of the Services.
The “Initial Term” of this Agreement is the period designated as such on the Order Form, unless terminated earlier in accordance with this Agreement. After the Initial Term, unless stated otherwise on the Order Form, the Agreement automatically renews for successive periods equal to the Initial Term (each a “Renewal Term” and collectively the “Term”) unless a party gives at least 30 days written notice to terminate prior to the expiration of the then-current Term, such notice to be effective at the end of the then-current Term.
A party may terminate this Agreement by written notice to the other party at any time if:
We may immediately suspend our performance or terminate this Agreement upon written notice if:
Nothing in this Agreement excludes or limits a party’s liability for any liability that cannot be excluded or limited under Applicable Law (including fraud).
Subject to section 8.1, each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution, or otherwise, direct or indirect, whether foreseeable, known, foreseen, or otherwise, however arising, for any:
Subject to sections 2.2 and 8.1, we make no warranties or representations:
Subject always to sections 8.1, 8.2, 8.3 and 10.10, each party’s total liability, however arising, will under no circumstances exceed in aggregate, 110% of the total amount of fees paid or payable for our Services under this Agreement for the 12 months immediately preceding the date any first claim arose.
We will indemnify you, your Affiliates, and your and their officers, directors, employees, and agents, against any claims, demands, actions, proceedings, losses, liabilities, damages, expenses, and costs (including court costs and reasonable attorneys’ fees), whether direct or indirect (collectively “Losses”) arising out of a claim against you that your use of the Services infringes the intellectual property rights of a third party (“IP Indemnity”). The IP Indemnity does not apply if the claim is based on:
In the defence or settlement of any claim relating to the IP Indemnity, we may:
You will indemnify us, our Affiliates, and our and their officers, directors, employees, and agents, against any Losses arising out of your breach (including a breach by your Users or any agency clients) of sections 3.2 or 3.4.
An indemnity is subject to the indemnified party giving the indemnifying party prompt written notice of any claim and sole control to defend or settle the claim. The indemnified party will use its commercially reasonable efforts to mitigate its Losses.
We collect and process User data in accordance with our Data Policy.
The following rules of interpretation apply to this Agreement:
Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications services.
We will not disclose that you are a customer without your prior written consent.
If any term of this Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.
Either party’s delay or failure to enforce a term of the Agreement is not a waiver of that right and does not prevent that party from later enforcing that term or any other term.
Each party will deliver notices for legal service or material breach by a courier service or recorded delivery: for Audiem, to our registered office address as set out above; for you, to your address as set out in an Order Form. Any notices for any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, you will send the notice to notice@audiem.io and we will send the notice to you via an email address listed in any Order Form. Notice sent by recorded delivery is deemed to have been received three UK business days after posting. A party is deemed to receive email notice 24 hours after it is sent.
You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with this Agreement, or any right, benefit, or interest under it, nor transfer or novate (each an “Assignment”) without our prior written consent. Any Assignment without our prior written consent is void.
The parties will:
This Agreement, including materials incorporated by reference, constitutes the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written about its subject matter. You agree that no representations were made prior to entering into this Agreement and that, in entering into this Agreement, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as set out in this Agreement. Nothing in this Agreement excludes or limits our liability for fraudulent misrepresentations or excludes (but this Agreement does limit) our liability for any fundamental misrepresentation.
If there is a conflict of this Agreement: sections 8 and 10.10 of these terms and conditions prevails over an Order Form (and any Service Agreement elements contained therein), and an Order Form prevails over other sections of these terms and conditions. The English version of these terms and conditions prevails over any non-English version.
Other than as set out in sections 9.1 and 9.2, nothing in this Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Agreement even if that person has relied on the term or has indicated to any party to this Agreement its assent to the term.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
THIS IS IMPORTANT, PLEASE READ: each party waives all rights to a jury trial in any legal proceedings arising out of this Agreement.
Each party agrees to the applicable governing law and to the exclusive jurisdiction of the applicable courts, set out in the table below.
