WHY Terms and Conditions
These terms and conditions of service (“Terms”) are a legal agreement between you (“Customer”) and Imagini Europe Limited (trading as VisualDNA) of 67-71 Shoreditch High Street, London E1 6JJ, United Kingdom (“VisualDNA”) (each a “Party” and collectively the “Parties”) in relation to your use of WHY.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING WHY, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS WHICH WILL LEGALLY BIND YOU.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms the following terms shall have the following meanings:
“Audience Analytics Tag” means a pixel, supplied to Customer by VisualDNA, which enables VisualDNA to install a cookie on a User device used to access the Site;
“Confidential Information”means the VisualDNA Data, the content of these Terms and all information whether technical or commercial (including customer, business, financial and sales information), howsoever disclosed and by any means, including disclosure in writing, on disc, by data transfer, orally or by inspection of documents or pursuant to discussions between the Parties), where the information is: (i) identified as confidential at the time of disclosure; or (ii) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure;
“Customer Data” means click stream data, URLs, IP addresses, browser type, OS type, time stamp information and any other data from which Customer may be identified;
“Data Controller” and“Data Processor”have the meaning given to them in the Data Protection Act 1998;
“Data Protection Requirements”means the Data Protection Act 1998, the EU Data Protection Directive (95/46/EC), the Privacy and Electronic Communications Directive (2002/58/EC), the PECRs and all applicable laws and regulations relating to the processing of Personal Data and privacy;
“Intellectual Property Rights” means all current and future rights in all intellectual property and other proprietary rights of any kind wherever in the world and whenever arising, whether registered or unregistered (and including any application), including copyright, know-how, Confidential Information, trade secrets, business names and domain names, trade marks, service marks, trade names, rights of privacy or publicity, patents, utility models, design rights, semi-conductor topography rights, database rights, goodwill or rights to sue for passing off and any renewals and extensions thereof and any right or form of protection of equivalent or similar nature or effect;
“PECRs” means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) (as amended);
“Permitted Purpose” means the use of VisualDNA Data by Customer to gain an insight into Users;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Site” means the Customer's website(s);
“Users” means the users of the Site;
“VisualDNA Data” means the data which is made available by VisualDNA to the Customer about third party individuals, which will normally be anonymous or pseudonymous but may include Personal Data. VisualDNA Data does not include Customer Data;
“VisualDNA Technology” means VisualDNA's proprietary behavioural algorithms;
“VisualDNA User Profiles” means the User profiles created through the VisualDNA Technology that can be used for providing insight into Users; and
“WHY” means this website, which contains the VisualDNA Data.
1.2 Headings and sub-headings are for reference and do not affect meaning.
1.3 A reference to a person includes an individual, firm, partnership, company, corporation, association, organisation or trust (in each case whether or not having a separate legal personality).
1.4 A reference to a clause is to a clause of these Terms and a reference to an Appendix is to an Appendix of these Terms.
1.5 Words in the singular include the plural and vice versa.
1.6 Any word or phrase introduced by the words “including” or “include” or any similar word or expression is illustrative and is not intended to limit the meaning of the related general words.
2. VISUALDNA OBLIGATIONS
2.1 VisualDNA shall:
2.1.1 provide analysis of the VisualDNA Data at WHY. VisualDNA shall not share this analysis with any third party without Customer's prior written consent.
3. CUSTOMER OBLIGATIONS
3.1 Customer shall:
3.2 allow VisualDNA to install cookies on Users' devices (used to visit the Site) by loading the Audience Analytics Tag on all pages of the Site;
3.2.1 cooperate with VisualDNA to ensure that VisualDNA can perform its obligations as set out in clause 2.
3.3 Customer acknowledges that VisualDNA's performance of its obligations under these Terms is dependent on Customer's timely and effective decisions, approvals and performance of its responsibilities.
4. INTELLECTUAL PROPERTY
4.1 Each Party recognises that all Intellectual Property Rights either owned by the other Party or licensed to the other Party by a third party are proprietary to the other Party or a third party (respectively).
4.2 Customer acknowledges and agrees that all Intellectual Property Rights in:
4.2.1 the VisualDNA Data; and
4.2.2 the VisualDNA User Profiles,
shall vest in VisualDNA on creation and Customer shall do all such acts and things as VisualDNA may reasonably require for the purpose of preserving, protecting or vesting such rights.
4.3 Customer acknowledges and agrees that all Intellectual Property Rights in:
4.3.1 the VisualDNA Technology; and
are owned by VisualDNA or its third party licensors and Customer shall do all such acts and things as VisualDNA may reasonably require for the purpose of preserving, protecting or vesting such rights.
4.4 Other than where expressly provided, nothing in these Terms shall grant to Customer any right, title or interest in any Intellectual Property Rights owned by VisualDNA or licensed to VisualDNA by a third party.
4.5 All Intellectual Property Rights in the Customer Data shall vest in Customer on creation.
5.1 Subject to Customer's compliance with the remainder of these Terms, VisualDNA grants Customer a non-exclusive, non-transferable, revocable, worldwide licence, during the term of these Terms to:
5.1.1 install and use the Audience Analytics Tag solely for the purposes of facilitating the tracking of Users' web activity against a VisualDNA cookie ID in accordance with these Terms;
5.1.2 access and use WHY (including the VisualDNA Data) solely for the Permitted Purpose and in accordance with these Terms; and
5.1.3 use the trade mark "VisualDNA" in accordance with the instructions of VisualDNA from time to time. Customer acknowledges that all goodwill accruing from the trade mark "VisualDNA" belongs exclusively to VisualDNA.
5.2 Customer grants to VisualDNA a royalty-free, non-exclusive, worldwide licence, during the term of these Terms, to use Customer's Intellectual Property Rights, including Customer's trade marks, logos and other materials supplied to VisualDNA, to the extent required to provide the services under these Terms. VisualDNA acknowledges that all goodwill accruing from Customer's trade marks belongs exclusively to Customer.
5.3 Customer grants VisualDNA and its permitted sub-contractors and advisors a royalty-free, non-exclusive, worldwide licence, during the term of these Terms, to use the Customer Data solely for the purpose of providing the services under these Terms.
5.4 Customer shall not (and shall not authorise others to) copy, reverse engineer, decompile, disassemble or attempt to derive the source code in respect of:
5.4.1 the VisualDNA Technology; or
except to the extent permitted by and subject to the provisions of Article 6 of the EC Software Directive as enacted by Section 50B of The Copyright (Computer Programs) Regulations 1992 or otherwise exploit, violate or misappropriate VisualDNA's Intellectual Property Rights.
5.5 Customer shall treat the VisualDNA Data as Confidential Information and shall not distribute, disclose, resell, transfer, adapt, copy, reutilise, assign or provide any access to the VisualDNA Data, to any third party, without the prior written consent of VisualDNA.
6. CUSTOMER ACCOUNT
6.1 To register for WHY, Customer shall complete the registration process by opening a Customer account (“Account”). This shall require the Customer to provide VisualDNA with current, complete and accurate information as prompted by the on-line registration form, including Customer’s email address, username and password.
6.2 Customer shall protect its Account password and shall take full responsibility for all use of WHY using its Account.
6.3 Customer acknowledges and agrees that it shall be solely responsible for any and all activities that occur under its Account.
6.4 Customer shall immediately notify VisualDNA of any unauthorised use of its Account.
6.5 VisualDNA may, from time to time, log into the Account in order to maintain or improve WHY, including to provide Customer with assistance with technical or billing issues.
7. VISUALDNA DATA
7.1 Customer shall immediately notify VisualDNA of any unauthorised use of the VisualDNA Data of which Customer is aware and will fully co-operate with VisualDNA (at Customer's expense) in any action undertaken by VisualDNA to:
7.1.1 protect VisualDNA's Intellectual Property Rights in the VisualDNA Data; and/or
7.1.2 comply with the Data Protection Requirements applicable to VisualDNA.
7.2 VisualDNA (and its suppliers, if applicable) reserve all rights, including Intellectual Property Rights, in and to all VisualDNA Data not granted expressly in these Terms.
8. DATA PROTECTION AND PRIVACY
8.1 The Parties acknowledge that, in relation to any information processed by either Party (for the purposes of providing or receiving services under these Terms) which constitutes Personal Data, each Party will be acting as a separate Data Controller in respect of that Personal Data and agrees that it shall comply with the Data Protection Requirements in relation to such processing. Further, Customer agrees that it shall only process such Personal Data for the Permitted Purpose, for the term of these Terms, and shall cooperate with VisualDNA in good faith and within a reasonable time concerning all queries relating to the processing of such Personal Data.
8.2 The Parties shall have in place and maintain throughout the term of these Terms appropriate technical and organisational security measures (which shall, in the case of Customer, include appropriate policies communicated to Customer's staff) in respect of Personal Data processed by it (in the context of these Terms), to prevent unauthorised or unlawful processing of such Personal Data and to protect such Personal Data against accidental loss, damage or destruction.
8.3 Notwithstanding the acknowledgement in clause 8.1, to the extent that there are any particular circumstances in which either Party processes Personal Data as a Data Processor on behalf of the other Party (the other Party acting as a Data Controller), each Party warrants and agrees that it will only do so in accordance with the instructions of the Party which is acting as the Data Controller.
8.4 Customer agrees to cooperate with VisualDNA in relation to:
8.4.1 the provision of any necessary information to individuals regarding the purpose and use of the relevant VisualDNA cookie (together with any Personal Data collected by VisualDNA); and
8.4.2 the implementation of any cookie consent mechanism which VisualDNA deems appropriate for the purposes of ensuring compliance by VisualDNA with Data Protection Requirements.
9.1 The Parties agree that all Confidential Information must be handled confidentially by the Party that received the Confidential Information (“Recipient”). Except as otherwise provided in these Terms, the Recipient undertakes:
9.1.1 subject to clause 9.4, not to disclose Confidential Information to anyone except its employees, contractors and advisors (on a need to know basis), except where the other Party's prior written consent has been obtained;
9.1.2 to use the Confidential Information only in connection with the performance or receipt of services pursuant to these Terms and not for any other purposes; and
9.1.3 to use all reasonable endeavours to protect the confidentiality of the other Party's Confidential Information.
9.2 The Parties shall ensure that the duties contained in this clause 9 are observed by their staff (including employees contractors and advisors).
9.3 This clause 9 shall not apply to Confidential Information that:
9.3.1 is or becomes publicly available through no fault of the Recipient;
9.3.2 is already in the Recipient's possession at the time of its disclosure without any duty of confidence; or
9.3.3 is independently developed by the Recipient without use of the disclosing Party's Confidential Information.
9.4 Each Party may disclose Confidential Information to the extent required to:
9.4.1 comply with a court or governmental order;
9.4.2 comply with applicable law; or
9.4.3 establish or preserve a Party's rights under these Terms.
10. WARRANTIES AND LIABILITY
10.1 Each Party warrants, represents and undertakes to the other Party that it has full power, capacity and authority to enter into and perform these Terms.
10.2 Neither Party shall be liable for any loss or damage arising out of or in connection with any statement, representation, assurance or warranty made by or on behalf of that Party (whether made negligently or innocently), which is not expressly contained in these Terms, even if that Party had notice of the possibility of such loss or damage.
10.3 Except in relation to a claim arising under clause 12 and subject to clause 10.6, neither Party shall be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for:
10.3.1 any loss of business;
10.3.2 loss of profits;
10.3.3 loss of anticipated savings;
10.3.4 loss of reputation;
10.3.5 loss of goodwill;
10.3.6 business interruption;
10.3.7 any increase in bad debt; or
10.3.8 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
arising out of or in connection with these Terms, whether or not that Party had notice of the possibility of such loss or damage, whether the same are suffered by the other Party or any person claiming under or through the other Party and whether the same are suffered directly or indirectly.
10.4 Except in relation to a claim arising under clause 12 and subject to the remainder of this clause 10, each Party's entire aggregate liability in respect of all claims, losses, damages and costs arising out of or in connection with these Terms in any period of twelve (12) consecutive months (“Contract Year”), whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed a sum equal to one hundred percent (100%) of the fees paid or payable by Customer to VisualDNA in that Contract Year.
10.5 Except as expressly provided in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Terms.
10.6 Notwithstanding any other term of these Terms, neither Party limits or excludes its liability for:
10.6.1 death or personal injury arising from its negligence; or
10.6.2 fraud or fraudulent misrepresentation.
11.1Either Party may terminate these Terms at any time immediately upon written notice to the other Party if:
11.1.1 the other Party materially breaches any provision of these Terms and such breach is irremediable;
11.1.2 the other Party materially breaches any provision of the Terms which is remediable but does not remedy the breach within thirty (30) days after receiving written notice of the breach requiring its remedy; or
11.1.3 the other Party becomes insolvent, unable to pay its debts when due, files a petition in bankruptcy, appoints a receiver or suffers any similar or analogous insolvency event.
11.2 Customer may terminate these Terms upon written notice to VisualDNA if, having received written notification of any updated Terms from VisualDNA in accordance with clause 14.2, Customer does not agree to such updated Terms.
11.3 On termination, for whatever reason:
11.3.1 all fees for Customer's access to WHY shall become due and payable to VisualDNA;
11.3.2 Customer shall cease using and delete all VisualDNA Data from its systems and a director of Customer shall promptly confirm in writing to VisualDNA that this has been done;
11.3.3 Customer shall promptly cease use of and delete, destroy or return to VisualDNA (at VisualDNA's sole discretion) any VisualDNA information, software, data or materials in its possession or control and a director of Customer shall promptly confirm in writing to VisualDNA that this has been done; and
11.3.4 VisualDNA shall promptly cease use of all Customer Data for computing new VisualDNA User Profiles within a period of no more than ninety (90) days from the date of termination and shall promptly confirm in writing to Customer that this has been done.
11.4 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect.
12.1 Customer will indemnify, defend, and hold harmless VisualDNA and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including reasonable legal fees, incurred by VisualDNA in connection with any actual or threatened third-party claim arising directly or indirectly from:
12.1.1 Customer’s use of WHY and/or the VisualDNA Data, other than as permitted under these Terms; and
12.1.2 Customer’s breach of any covenant, representation or warranty in these Terms.
12.2 If any third party makes a claim, or notifies an intention to make a claim, against VisualDNA which may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), VisualDNA shall:
12.2.1 as soon as reasonably practicable, give written notice of the Claim to Customer, specifying the nature of the Claim in reasonable detail;
12.2.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Customer (such consent not to be unreasonably conditioned, withheld or delayed), provided that VisualDNA may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to Customer, but without obtaining Customer's consent) if VisualDNA reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
12.2.3 give Customer and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of VisualDNA, so as to enable Customer and its professional advisers to examine them and to take copies (at Customer's expense) for the purpose of assessing the Claim; and
12.2.4 subject to Customer providing security to VisualDNA to VisualDNA's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses that may be incurred, take such action as Customer may reasonably request to avoid, dispute, compromise or defend the Claim.
13. FORCE MAJEURE
13.1 Neither Party will be liable for, or be considered in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control (including, without limitation, the other Party’s act or failure to act), provided that the Party relying upon this provision:
13.1.1 gives prompt written notice thereof; and
13.1.2 takes all steps reasonably necessary to mitigate the effects of the force majeure event.
14. UPDATES TO THESE TERMS
14.1 VisualDNA may update these Terms, for example, to reflect changes to the law or changes to WHY.
14.2 VisualDNA will provide at least thirty (30) days' prior written notice (by e-mail) to Customer's designated contact of all updates to these Terms.
14.3 If Customer does not agree to any updated Terms, Customer shall provide written notice to VisualDNA as soon as reasonably practicable and shall discontinue its use of WHY prior to the updated Terms taking effect.
14.4 Customer's continued use of WHY on or after the date the updated Terms take effect, following notification of an update to these Terms in accordance with clause 14.2, shall constitute Customer's acceptance of the updated Terms.
15.1 These Terms are governed by and shall be construed in accordance with English law.
15.2 The courts of England will have exclusive jurisdiction to settle any dispute which arises out of or in connection with these Terms and each Party agrees to submit to that jurisdiction.
15.3 No partnership or agent/principal relationship is created by these Terms.
15.4 A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of the Terms.
15.5 These Terms may not be assigned or subcontracted by either Party without the prior written consent of the other Party (not to be unreasonably withheld or delayed), provided that VisualDNA may assign or subcontract these Terms without Customer's consent to any entity that acquires VisualDNA or all or substantially all of its assets.
15.6 All notices, consents, and approvals under these Terms must be delivered in writing by courier, by fax, by e-mail or by registered mail to the other Party at the contact details provided for this purpose (or such other contact details as may be notified in writing from time to time) and will be effective upon receipt.
15.7 Any waiver of any provision of these Terms must be in writing and will not be deemed a waiver of any other provision. Any provision of these Terms that is unenforceable will be severed and the remaining provisions will continue in full force and effect.