In this section
BY TICKING THE "ACCEPT" BOX FOR THE TERMS OF THIS AGREEMENT ON REGISTRATION OR BY ACCEPTING ANY MODIFICATION TO THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS 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 LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU" SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE "DECLINE" BUTTON AND YOU MAY NOT USE THE SERVICES.
1. THE SERVICES
1.1. The following definitions shall have the following meanings:-
- “Data" means any additional data generated by you as a result of processing the User Files;
- “Free Services" means the services we make available to you for no fee;
- “Free Trial" means a free trial period of the Paid Services;
- “Paid Services" means the services we make available for a fee;
- “Quota" means the maximum quantity of User Files that may be stored by you on our systems at any one time and expressed as a number of Gigabytes;
- “Services" means the Free Services and the Paid Services;
- “Subscription Fees" mean the fees for the Paid Services identified on the Website and as varied from time to time;
- “Subscription Period" means the subscription period for the Services which can be month to month, yearly or another duration described on the Website;
- “Trade Mark" means the "iBehave" trade mark under UK Trade Mark Registration Number 2486568 and any other registered trade marks we may own;
- “User Files" means files which are uploaded by you and stored for the purposes of using the Services; and
- “Website" means the Actual Analytics website accessible from our website at actualanalytics.web2.indez.com.
1.2. The services covered by this Agreement include both the Free Services and the Paid Services.
1.3. Free Services
The Free Services consist of a 30 day, time limited free trial of Actual Rodent Track and all other services that we make available to you free of charge on the Actual Analytics website accessible from our website at actualanalytics.web2.indez.com.
1.4. Paid Services
The Paid Services include Actual Score, Actual Track, and Actual Rodent Track and all services and any related support services that we make available to you from the Website for a fee. The Quota for any Paid Service is variable and displayed with the pricing information.
1.5. Account Set Up
To use the Paid Services, you need to set up an account. We will ask you for registration information, such as your name, e-mail address, account password, and mailing address. We collect your billing information either upon initial registration, when you subscribe for Paid Services or at the end of any available Free Trial.
The Free Services and the Paid Services may be subject to a Subscription Period and/or a Quota. The Subscription Period for the Free Services is for the duration of the Free Services. The Subscription Period and the Quota will be notified to you prior to completion of registration for any Service.
1.7. Quota Limit
1.7.1. If a Paid Service is subject to a Quota, you may upload User Files to the maximum limit specified in the Quota. In the event the upload limit is reached, existing User Files may be deleted by you in order to upload further User Files.
1.7.2. If for some reason we cannot deal with the User File which has been uploaded then it will be excluded for the purposes of calculating the Quota.
1.7.3. The maximum permitted size of a User File is 4GB.
You can upgrade your account at any time. When you upgrade to another type of account, we will apply the unused portion of your existing Subscription Fee to the cost of your upgraded account type and if there is an outstanding balance we shall apply that to extend your initial Subscription Period based upon the daily charge for your upgraded account.
You can downgrade your Paid Account to a different Paid Account with a lower Quota, different features, or with a shorter Subscription Period. However, any downgrade will apply and you will be charged for the downgraded account type only after the end of the Subscription Period for your existing account.
2. MODIFICATIONS TO THIS AGREEMENT
2.1. We may make modifications to this Agreement at any time by posting a revised version of the Agreement on the Website. The revised terms shall be effective as follows:
2.1.1. if the revised terms are for any Free Service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
2.1.2. if the revised terms are otherwise for any then-existing Paid Services, then the revised terms shall be effective upon the earlier of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button.
2.2. By continuing to use or receive the Services after the effective date of any revisions to this Agreement you agree to be bound by the revised terms of the Agreement. It is your responsibility to check the Website regularly for changes to this Agreement.
3. TERM, TERMINATION AND SUSPENSION
Once you agree to the terms and conditions of this Agreement by ticking the "accept" box prior to completion of registration, the Agreement will, subject to the other terms of this Section 3, remain in force for the Subscription Period..
3.2. Cancellation By You
You can cancel your account at any time by contacting customer service. Cancellation will be effective immediately. Please note that after you cancel your account, you will not be able to use or access the Service and you will not be entitled to a refund of any fees that you may have paid.
3.3. Cancellation or Suspension by Us Other Than for Cause
We may suspend your right and license to use any or all of the Services or cancel this Agreement in its entirety for any reason or for no reason, at our discretion at any time by providing you sixty (60) days' advance notice in accordance with the notice provisions in Section 12 below.
3.4. Cancellation or Suspension by Us for Cause
3.4.1. We may suspend your right and license to use any individual Services or any set of Services, or cancel this Agreement in its entirety (and, accordingly, your right to use all Services) immediately upon our notice to you in accordance with the notice provisions set out in Section 12 below if:
18.104.22.168. you attempt a denial of service attack on any of the Services;
22.214.171.124. you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services poses a security or service risk to us, to any user of services offered by us, or may subject us or any third party to liability, damages or danger;
126.96.36.199. you are in default of your payment obligations under this Agreement
188.8.131.52. we determine, at our sole discretion, there is evidence of fraud with respect to your account;
184.108.40.206. you use the Trade Mark other than as expressly permitted by this Agreement;
220.127.116.11. we receive notice or we otherwise determine, in our sole discretion, that you may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party;
18.104.22.168. we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
22.214.171.124. subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.5. Consequences of Expiry or Cancellation In the event this Agreement expires or is cancelled for any reason:-
3.5.1. Sections 9, 15 and 16, will survive any such expiry or cancellation;
3.5.2. all rights granted to you under this Agreement shall cease;
3.5.3. you must immediately pay to us any sum due under this Agreement;
3.5.4. you will retain read only access to all User Files and Data for a period of one month following which all such User Files and Data will be inaccessible by you.
4. LICENCE TO USE THE SERVICES
4.1. Subject to the terms of this Agreement, we hereby grant to you a non-exclusive, non-transferable licence to use the Services commencing upon the acceptance by you of the terms of this Agreement.
4.2. Your rights to use the Services shall be limited to those specified in this Agreement. Any other use of the Services is not permitted.
4.3. No information provided to you under the Services will be corrupted, changed, altered, amended or varied or damaged, destroyed, deleted, or decimated or otherwise modified to create other products or services by you or on your behalf. You shall ensure that no viruses, worms, Trojan horses or other code, scripts or instructions which will or are designed to delete, damage or modify program or data files are transferred by you to our computer systems or any of our customers using the Services.
4.4. You shall not, whether for a fee or free of charge, use the Services in any manner to provide behavioural analysis services to any third parties or otherwise to rent, lease, loan, resell for profit, redistribute, sub-lease, sub-licence or create works based upon the Services or any part of the same.
4.5. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. We have the right to disable any use identification code or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any terms of this Agreement.
4.6. You will notify us immediately on becoming aware of any passwords or other unique identification data or security procedures issued to you by us are disclosed or become known by any unauthorised person.
4.7. During the term of this Agreement, you shall at your own cost and expense, procure and use in connection with the Services all hardware, equipment, telephone installation, terminal, consumable or other equipment required to access and use the Services.
5. ACCEPTABLE USE POLICY
5.1. You may only use the Services in accordance with the AUP.
5.2. You are permitted to upload five times the level of the relevant Quota in any Subscription Period. However, any use in excess of that amount shall constitute a material breach of our AUP.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. You acknowledge that copyright and any other intellectual property rights (including without limitation rights in relation to inventions, patents, utility models, designs rights and registered and unregistered designs, database rights, and the Trade Mark in and to the information and data, databases, images, content, style, "look and feel" and function of the Services, in whole or in part, is and shall remain at all times owned exclusively by us and all rights not expressly granted under this Agreement are reserved by us.
6.2. You hereby grant to us an non-exclusive, irrevocable royalty free, licence to use, copy, transmit, distribute, store and cache any and all User Files and Data stored or generated by your use of the Services for the purposes of us performing research and development, and to enable us to provide support services. You acknowledge that in performing these duties we may pass User Files and Data to third parties provided that such User Files and Data will be anonymised and that such disclosure will be pursuant to the terms of an appropriate confidentiality agreement.
We shall at all times use all reasonable endeavours to ensure that all User Files are secure. However we cannot guarantee that all User Files and Data shall remain safe and secure at all times due to nature of the internet. We recommend that you (i) regularly back up your data; and (ii) ensure that the software you use to access the Services is up to date with the latest anti-virus and/or security software / updates. You acknowledge it is your responsibility to keep back-up copies of the User Files you input into the Service. We shall have no liability to you for any unauthorised access, use, corruption, deletion, destruction or loss of any User Files or Data
8.1. Subscription Fees
8.1.1. In consideration of your use of any of the Paid Services, you agree to pay the Subscription Fees as specified on the Website. We may increase or add new fees for any existing Services or Service feature by giving you 30 days' advance notice. Such notice will be posted on the Website. You agree that you are responsible for checking the Website to confirm whether there are any new fees and their effective date(s). All Subscription Fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax.
8.1.2. For renewals of Paid Services, we will automatically charge your credit card the amount of the then current fee for the type of Service. By subscribing for the Paid Services, you consent to allow us to charge your credit card, either directly or through its payment processes, for the amounts due for your initial Subscription Period and for any additional Subscription Periods until your account is cancelled.
8.2. Free Trials of Paid Services
8.2.1. Paid Services may have a Free Trial Period, if offered by us, during which time the account can be used without charge. IF YOU HAVE PROVIDED YOUR CREDIT CARD INFORMATION UPON INITIAL ACCOUNT SETUP, YOU ACKNOWLEDGE THAT YOU MUST CANCEL THE ACCOUNT, BEFORE THE END OF THE FREE TRIAL TO AVOID BEING CHARGED AFTER THE FREE TRIAL. IF YOU HAVE NOT PROVIDED ANY CREDIT CARD INFORMATION UPON INITIAL ACCOUNT SETUP, THEN YOU MUST PROVIDE IT AND PURCHASE THE PAID ACCOUNT PRIOR TO THE END OF THE FREE TRIAL OR YOUR ACCOUNT WILL BE TERMINATED AT THE END OF THE FREE TRIAL PERIOD.
8.2.2. Subscription Fees shall automatically renew for the same Subscription Period unless you cancel the account by the end of the then current Subscription Period.
We may specify the manner in which you will pay any Subscription Fees. All amounts payable by you under this Agreement will be made without set off or counterclaim and without deduction or withholding.
We shall use all reasonable endeavors to keep any and all information or data made available to us by you confidential at all times. We shall only use such information or data for the purposes set out in this Agreement and for no other purpose. We shall not disclose any such information or data to any third party without your consent, except under the licence granted under Clause 6.2.
10. LIMITATIONS OF LIABILITY
10.1. Nothing in this Agreement shall limit or exclude our liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.
10.2. We shall, in so far as is permissible by law, not be liable to you for any indirect, consequential or pure economic loss, loss of profit, loss of business, goodwill or any other anticipated profits.
10.3. Subject to Condition 10.1 our maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to five (5) times the current value of a twelve (12) month subscription of the Paid Services.
10.4. This Agreement sets out the full extent of our obligations and liabilities in respect of the provision of the Service. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the Services which might otherwise be implied into, or incorporated in, this Agreement, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
10.5. We do not warrant the quality or accuracy of any information provided under the Services or warrant the quality or accuracy of any information or documentation resulting from or transmitted using the Services. No warranty is given by us that the aspects of the Services will meet your requirements or that the operation of the Services will be uninterrupted or error or bug free. You acknowledge that you are responsible for the selection of the information to be input for the purposes of using the Services.
11. TRANSFER OF RIGHTS AND OBLIGATIONS
11.1. This Agreement is binding on you and us and on our respective successors and assigns.
11.2. You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent.
11.3. We may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of his rights or obligations arising under it, at any time during the term of this Agreement.
All notices given by you to us must be given to Actual Analytics Limited having its registered office at Dalmore House, 310 St Vincent Street, Glasgow, G2 5QR. We may give notice to you at either the e-mail or postal address you provided to us during registration for use of the Service. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
13. EVENTS OUTSIDE OUR CONTROL
13.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by an event outside its reasonable control (Force Majeure Event).
13.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond the Licensor's reasonable control and includes in particular (without limitation) the following:
13.2.1. strikes, lock-outs or other industrial action;
13.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
13.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
13.2.4. impossibility of the use of public or private telecommunications networks;
13.2.5. the acts, decrees, legislation, regulations or restrictions of any government.
13.2.6. Any third-party services we rely on being unavailable
13.3. Our performance under this Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We shall use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event.
14.1. If we fail, at any time during the term of this Agreement, to insist on strict performance of any of its obligations under this Agreement, or we fail to exercise any of the rights or remedies to which he is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
14.2. A waiver by us of any default shall not constitute a waiver of any subsequent default.
14.3. No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
16. ENTIRE AGREEMENT
16.1. This Agreement and any document expressly referred to in this Agreement constitutes the whole agreement between us, supersedes any prior arrangement, understanding or arrangement between us, in relation to the provision of the Service.
16.2. We each acknowledge that, in entering into this Agreement (and the documents referred to in it), relies on any statement, representation, assurance or warranty by any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.
16.3. Nothing in this condition shall limit or exclude any liability for fraud.
17. LAW AND JURISDICTION
This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Laws of Scotland and in the event of a dispute the parties hereby submit to the non-exclusive jurisdiction of the Scottish courts.