The Agreement between you and us is made up of all Order Form(s), the Terms and our Privacy Policy (and any amendments to those documents from time to time in accordance with the Agreement). In the event of any conflict, the following order of priority applies: the Order Form(s) (with those entered into later in time taking precedence over those entered into earlier in time); then the Terms; then the Privacy Policy.
‘Ideally’, ‘we’, ‘our’ and ‘us’ refers to Ideally Group Limited and our permitted successors or assigns.
‘User’, ‘you’ or ‘your’ refers to you, the User entity, set out in the Order Form.
1.1
Services: Subject to the Agreement, Ideally will provide you with the Services.
1.2
Purpose: You will only use the Services for the Purpose.
1.3
Services standards and App availability: We will provide the Services in accordance with Good Industry Practice. However, you acknowledge that we may release updates to or new versions of the Services (or any parts of it), change the method of provision of, or access by you to, the Services, including as a result of changes to our arrangements with third party suppliers and/or to change or discontinue any feature or functionality of the Services for any reason as part of the evolution of the Services (including changing or switching out any of the underlying data or datasets). You also acknowledge that the Services may be temporarily unavailable or suspended for scheduled maintenance, updates or changes, or for unscheduled emergency maintenance, either by us or by our third-party providers, or because of other causes beyond our reasonable control. We will use reasonable efforts to provide advance notice in writing of any such material update, change or discontinuance and/or any scheduled service disruption, and to schedule such maintenance, updates or changes to occur outside of business hours.
1.4
Permitted Users: You may permit your Permitted Users to access and use the App (and you can set controlling roles and levels access using the functionality of the App). We will provide user credentials to you to enable access to the App.
2.1
Term:
(a)
The Agreement starts when the first Order Form is signed by both parties and, unless terminated earlier in accordance with its terms, shall continue until all Order Forms executed under the Agreement have either expired in accordance with their terms or been validly terminated in accordance with the Agreement (Term).
(b)
Each Order Form commences on the Start Date set out in the Order Form and, unless terminated earlier in accordance with its terms or as otherwise set out in the Order Form, the Order Form continues until the End Date set out in the Order Form (Initial Period). Unless set out otherwise in the Order Form, on expiry of the Initial Period, an Order Form will renew automatically for successive renewal periods as set out in the Order Form (each a Renewal Period) unless either party gives the other party not less than Renewal Notice Period in advance of such expiry of the Initial Period or the then-current Renewal Period), in which case the Order Form ends on expiry of the Initial Period or the then-current Renewal Period (as applicable).
2.2
Termination for cause: Either party may terminate the Agreement (including, for the avoidance of doubt, all Order Forms entered into) immediately by notice in writing to the other party if the other party: (a) commits any material breach of the Agreement which is not capable of remedy; (b) commits any material breach of the Agreement which is capable of remedy (which includes your failure to make any payment due under the Agreement) and fails to remedy such breach within thirty (30) days of receipt of written notice requiring it to do so; (c) commits repeated breaches of the Agreement that, while individually do not constitute a material breach, collectively amount to a material breach when taken together; or (d) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
2.3
Refund or payment upon termination: If the Agreement is terminated by you under clause 2.2 (Termination for Cause) or clause 1.1(c) (IP infringement), we will refund you the pro-rata amount of the Fees prepaid and unused (in the case of credits) by you in relation to the period following termination (if any) and you are released from any obligation to pay Fees due in relation to the period after termination. In all other cases, termination will not entitle you to a refund of, or relieve you of your obligation to pay any, Fees payable to us for the period up to termination. For the avoidance of doubt , if the Agreement is terminated by us under clause 2.2 (Termination for Cause), you will not be entitled to a refund of any prepaid Fees and must pay any unpaid Fees in relation to the remainder of the Term to the extent permitted by Applicable Law.
2.4
Effect of termination: On termination of the Agreement: (a) your right to access and use the Services ends; (b) each party shall delete, destroy, or return all of the other parties’ Confidential Information in its possession or control as soon as reasonably practicable (provided that, in our case, we do so in compliance with our internal security policies); (c) the rights and liabilities of the parties accrued at any time up to the termination date are not affected; (d) all clauses and sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability; and (e) Ideally will initiate an automatic or manual script to permanently delete Personal information of the customer within 90 days of the termination date.
3.1
Fees: You will pay us the Fees in accordance with the Payment Terms set out in the Order Form(s). We may amend the Fees in the manner set out in the Order Form(s) (if applicable). Except as set out otherwise in an Order Form, payment is due within 30 days of invoice date. Payment obligations are non-cancellable and, except as set out in the Agreement, all Fees are non-refundable. Fees are exclusive of Taxes. All amounts due from you shall be paid in full without any set-off, counterclaim, deduction or withholding other than any deduction or withholding of Taxes as required by law, subject to the following. If any such withholding or deduction is required by law, you shall, when making the payment to which the withholding or deduction relates, pay us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required.
3.2
Late payments: If Fees are not paid when due, we may no less than fourteen (14) days after written notice to you of the late payment: (a) charge you interest for late payment on the outstanding balance effective from the due date at 1.5% per month or the maximum permitted by Applicable Law whichever is lower (plus all expenses of collection); and/or (b) suspend your access to and use of the Services, until the overdue amount is received in full (and without prejudice to any other rights or remedies available to us).
4.1
Restrictions: You will not, and you must ensure that your Permitted Users do not (nor attempt to), directly or indirectly:
(a)
reverse engineer, de-aggregate, decompile, disassemble, translate or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Ideally Data or App;
(b)
data mine, scrape, crawl, aggregate, copy, extract or attempt to harvest (whether by any automated process, ‘brute force attack’ or otherwise) the Services, Ideally Data or App for any purpose, including setting up or adding to a database;
(c)
sell, resell, commercialise, assign or transfer any right, title or interest (including any Intellectual Property) in the Services, Ideally Data or App to any person, unless otherwise expressly permitted by the Purpose;
(d)
use the Services, Ideally Data or App for any purpose other than your own business purposes or for the benefit of anyone other than yourself or for any illegal, dishonest, fraudulent, malicious or unauthorized purpose;
(e)
use the Services, Ideally Data or App in any way to build a product or service that competes in any way with our business;
(f)
use the Services, Ideally Data or App for the purposes of monitoring the availability, performance or functionality of the Services, Ideally Data or App or for any other benchmarking or competitive purposes;
(g)
use the Services, Ideally Data or App in a way that may damage, disable, overburden, or impair the Services, Ideally Data or App or the networks connected to the Services, Ideally Data or App;
(h)
remove, alter or deface any copyright notices, disclaimers or other proprietary notice appearing on or in the Services, Ideally Data or App;
(i)
distribute through the Services or App any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law, statute, ordinance or regulation;(iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines;
(j)
attempt to undermine the security of any part of the Services, Ideally Data or App or use them in a manner which may impair their functionality;
(k)
provide Services passwords or other user credentials or log-in information to any third party; or
(l)
use the Services, Ideally Data or App in any way that constitutes a misuse of any person’s Confidential Information or breach of any person’s rights (including Intellectual Property and privacy) or breaches Applicable Laws.
4.2
Unauthorized access: You will take reasonable steps to prevent unauthorized access to the Services, including without limitation, by protecting user credentials or log-in information. You must notify us immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use your best efforts to stop any such unauthorized use or breach.
4.3
Responsibility for user account: You are responsible and liable for any use of the Services through your account, including the acts and omissions of your Permitted Users (whether authorized or unauthorized) and the controlling roles and levels access that you grant such Permitted Users using the functionality of the App.
4.4
Monitoring: Although we have no obligation to monitor your use of the Services, we may do so and may suspend access and any use of the Services if we become aware of, or reasonably suspect, a breach of this clause 4.
5.1
Confidentiality: Each party (the Receiving Party) agrees and acknowledges that the other party (the Disclosing Party) has disclosed, or may disclose, Confidential Information pursuant to the Agreement. Where the Receiving Party receives Confidential Information from the Disclosing Party under or in connection with the Agreement, the Receiving Party will: (a) keep the Confidential Information strictly confidential; (b) not use, modify, reproduce or exploit the Confidential Information for any purpose other than as is permitted under the Agreement; and (c) subject to clause 5.2, not disclose Confidential Information to any person other than its representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this clause 5. Other than as expressly stated, the Agreement does not transfer ownership of Confidential Information or grant a license thereto. The Disclosing Party retains all right, title, and interest in and to all relevant Confidential Information.
5.2
Permitted disclosures: Notwithstanding clause 5.1, the Receiving Party may disclose Confidential Information: (a) to its professional advisors, to obtain legal or other professional advice in relation to matters arising under or in connection with the Agreement; and (b) to the extent required to comply with any applicable law, binding directive of a regulator or a court order, in which case the Recipient must use reasonable endeavors to give the Disclosing Party prior notice of such disclosure (to the extent permitted by law) and disclose only that portion of the Confidential Information necessary to satisfy the relevant requirement.
5.3
Exclusions: The Disclosing Party agrees that clause 5.1 shall not apply in relation to any information that: (a) is or becomes generally available to the public through no act or fault of the Receiving Party; (b) was in the possession of the Receiving Party or known by the Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party without restriction by a third party; (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is disclosed by the Receiving Party if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Receiving Party enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 5.
5.4
Remedies: Each party agrees that breach of this clause 5 may cause irreparable injury to the other party, for which monetary damages may not provide adequate compensation, and that, in addition to any other remedy, the other party will be entitled to seek injunctive relief against any breach or threatened breach, without proving actual damage or posting a bond or other security.
5.5
Personal information: In providing the Services, we do not knowingly or intentionally collect, use, access or process any Personal Information. To the extent either party does collect, use, access or process any Personal Information in connection with the Agreement each party warrants and agrees that it will comply with applicable Privacy Laws. Without limiting the foregoing, you warrant that any Personal Information contained in the User Data or otherwise disclosed by you, or on your behalf, to us in connection with the Agreement has been collected in accordance with applicable Privacy Laws, and that, as required by applicable Privacy Laws, you have provided affected individuals with any information required to ensure that the individuals understand how their Personal Information may be used by us or obtained the affected individuals consent to the same. In addition to applicable Privacy Laws, you agree and acknowledge to our use, processing, transfer and/or disclosure of any Personal Information in the manner described in the Privacy Policy. The Privacy Policy applies only to the Services and does not apply to any third party website or service linked to the Services or recommended or referred to through the Services or by our personnel. At 90 days beyond the End Date (at the end of the Initial Period, or Renewal Period as applicable), an automatic or manual script shall be initiated by Ideally to permanently delete Personal information of the customer.
5.6
Security: We will use commercially reasonable efforts to maintain the security and integrity of the Service and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Confidential Information and any User Data.
5.7
Case studies: We may create a case study about you and your experience as a user of the Services (which may or may not include use of your name, logo and/or branding). Case studies may be published publicly, but will be sent to you for your prior written approval before doing so.
6.1
Ownership of Intellectual Property: You acknowledge and agree that we (or our third party suppliers) own and/or retain all Intellectual Property: (a) in or arising out of the Services (including the App and the Ideally Data); and (b) in any software, applications, inventions or other technology developed in connection with the Services, and all improvements, enhancements or modifications thereto, including, without limitation, all graphics, user interfaces, logos, data, and trademarks reproduced through the Services or App. The Agreement does not grant you any rights, title or license to the Intellectual Property in or to the Services or any of its components, except as expressly set out in the Agreement. Subject to any applicable terms in the Order Form, we grant you a non-exclusive, non-transferable, royalty-free, perpetual license to use the Ideally Data for your own business purposes subject to complying with clause 4.1 in relation to such use (including any use following the end of the Term).
6.2
Derivative works: If you use the App and the Ideally Data to create a new original work or other works or materials based wholly or partly upon (whether by using, incorporating, modifying) the App and the Ideally Data (Derivative Works) then you may create and distribute Derivative Works. Where you are authorized to create a Derivative Work, then, unless otherwise specified:
(a)
subject to clause 6.2(b), you own the Derivative Work upon creation; and
(b)
Ideally (or our third party suppliers) owns and continues to own all Intellectual Property in the Ideally Data incorporated into the Derivative Work.
6.3
Feedback: If you provide us with any feedback about the Services, we may use that feedback without any restriction or compensation to you provided that any feedback we use will not publicly identify you. We acknowledge all feedback you provide is provided as-is without warranties of any kind and that use of the feedback by us is at our own risk.
6.4
User Data: We acknowledge and agree that you (or your licensors, as applicable) are and remain the sole and exclusive owner of all Intellectual Property in User Data. You acknowledge and agree that we are entitled to rely on, and you represent and warrant, the accuracy and completeness of the User Data and, unless expressly required otherwise, we have no obligation to verify the accuracy or completeness of the User Data. You grant us a non-exclusive, non-transferable license to use User Data for the limited purpose of providing the Services to you and as otherwise set out in the Agreement. We will not use User Data for any other purpose without your prior written consent. You represent and warrant that: (a) our use of the User Data in accordance with the Agreement will not infringe applicable laws or the Intellectual Property or privacy of any third party; and (b) you hold and will continue to hold all necessary licenses, consents and authorisations required for us to use the User Data in accordance with the Agreement.
6.5
Analytics: We reserve the right to gather analytics in relation to your activity on, and use of, the Services for our internal purposes, such as billing, gauging interest, identifying usage patterns, benchmarking and research and development. You agree that such analytics do not comprise User Data for the purposes of the Agreement.
6.6
Services and Product Development: You grant us a non-exclusive, non-transferable licence to collect, use, and analyze User Data for the limited purposes of deriving and/or generating anonymous, aggregated, statistical and/or usage data (Anonymized Data) solely in order to (a) improve and/or develop our Services, App and any other software and services used or made available by us (or those authorized by us) at present or in the future; and (b) combine and/or incorporate such Anonymized Data with or into other data and information datasets (when so combined or incorporated, referred to as Aggregate Data), so as to permit us to provide services, including benchmarking and the distribution, licensing or sale of such Aggregate Data, to third parties pursuant to a separate licensing or services arrangements or agreements. You acknowledge and agree that we will own all rights, title and interest in the Aggregate Data. The Anonymized Data will not include any Personal Information nor identify you as a source of any Anonymized Data.
7.1
Compliance with laws: Each party represents and warrants to the other on a continuing basis that it will comply with all Applicable Laws relating to: (a) in our case, providing the Services; and (b) in your case, the User Data and your use of the Services.
7.2
Other services: The Services may include links, integrations, or connections to third-party websites, applications, or other services. Such connections do not imply review or endorsement by us. You proceed at your own risk to a third-party website, application, or service which may be governed by separate terms and conditions applicable to such third-party website, application, or service.
7.3
DISCLAIMER: EXCEPT AS EXPRESSLY SET OUT IN THE AGREEMENT, THE SERVICES (INCLUDING THE APP AND THE IDEALLY DATA) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND ALL TERMS, WARRANTIES, REPRESENTATIONS AND CONDITIONS ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY US (WHETHER EXPRESS OR IMPLIED, BY LAW OR OTHERWISE) IN RESPECT OF THE SERVICES, INCLUDING THAT THE SERVICES WILL BE MERCHANTABLE; WILL MEET YOUR REQUIREMENTS; ARE FIT OR SUITABLE FOR YOUR INTENDED PURPOSE OR USE; OR WILL BE UNINTERRUPTED, ERROR-FREE, CORRECT, ACCURATE, COMPLETE, CURRENT OR UP-TO-DATE. YOU ARE RESPONSIBILE FOR ANY BUSINESS DECISION MADE ON THE BASIS OF THE INFORMATION DERIVED FROM USING THE SERVICES.
7.4
Acknowledgment: In addition to the above, you acknowledge that the Services and the App may rely on:
(a)
data collected and provided by third party sources, including but not limited to survey data, analytics, and other research methods not conducted by Ideally and which data collection methods and processes may be subject to the limits of statistical errors and rounding up or down;
(b)
data, infrastructure, and services provided by you and third parties, including but not limited to cloud hosting and storage services, data processing services, terminal equipment and communication networks; and
(c)
Artificial Intelligence and Machine Learning software and tools (AI Tools) to deliver results more efficiently, perform certain product functionality and to leverage the commercial, technological and strategic benefits associated with such AI Tools, including in a ‘customer-facing’ capacity as part of the Services (and in the production of any Service-related outputs) and for our internal business purposes, and that the reliability, availability and performance of the Services and the App may be affected by the reliability, availability and performance of such third party sources and services, which are beyond our control and that we make no representations or warranties regarding any such third party sources and services.
8.1
Indemnification: The first party (Indemnifying Party) will defend the other party (Indemnified Party) against any third party claim against the other party and indemnify and keep indemnified the other party from and against any liabilities, losses, damages, costs and expenses including reasonable legal costs (on a solicitor-client basis) associated with such third party claim to the extent caused by:
(a)
where we are the Indemnifying Party, your use of the Services infringing upon such third party’s Intellectual Property; and
(b)
where you are the Indemnifying Party, our use of the User Data infringing upon any third party rights, each a Third Party Claim. The indemnifying Party’s obligations under this clause will not apply to the extent that the Third Party Claim results from the Indemnified Party’s breach of the Agreement.
8.2
Indemnification procedure: If either party becomes aware of or receives a Third Party Claim for which it seeks or may seek indemnification under clause 8.1:
(a)
the Indemnified Party will promptly notify the Indemnifying Party in writing of the Third Party Claim;
(b)
if the Indemnifying Party requests, the Indemnified Party will afford the Indemnifying Party sole control (at the Indemnifying Party’s cost) over the conduct of the defense of the Third Party Claim and all negotiations for its settlement, in which case:
i.
the Indemnifying Party must consult with and keep the Indemnified Party informed regarding the settlement and /or defense of the Third Party Claim and obtain the Indemnified Party’s prior written approval to any settlement or compromise (not to be unreasonably withheld); and
ii.
the Indemnified Party will provide the Indemnifying Party with reasonable information and assistance in relation to the settlement and/or defense of the Third Party Claim.
8.3
Indemnification remedy: Where we are the Indemnifying Party and the Services are held by a court of competent jurisdiction to be or are believed by us to be potentially infringing a third party’s Intellectual Property, we may, at our option and expense:
(a)
replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality;
(b)
obtain for you a license to continue using the Services; or
(c)
neither of the foregoing is commercially practicable, terminate the Agreement and provide a refund of prepaid Fees in accordance with clause 2.3.
9.1
Mutual limitation: Subject to clauses 9.2 and 9.3, and to the extent permitted by Applicable Law, each party’s maximum aggregate liability to the other party for all and any liabilities, losses or damages under or in connection with the Agreement will be limited to the total amount of Fees paid and payable by you to us under the Agreement during the 12 months prior to the date of the event giving rise to such liabilities, losses or damages.
9.2
Exceptions to mutual limitation: Subject to clause 9.3, the limitation of liability in clause 9.1 will not limit the liability of either party arising from or in connection with: (a) the gross negligence or wilful misconduct of a party; (b) death or personal injury caused by a party; (c) fraudulent acts or intentional misrepresentations by a party; (d) the indemnification obligations under clause 8; (e) breaches of clause 5; or (f) any liability to the extent such liability cannot be limited or excluded by Applicable Law.
9.3
NO EXCLUDED LOSS: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY (A) SPECIAL, INDIRECT, CONSEQUENTIAL LOSS OR DAMAGE; OR (B) LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS OR SAVINGS, LOSS OF OPPORTUNITY, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REPUTATION (WHETHER DIRECT OR INDIRECT) WHETHER ARISING IN EQUITY, FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, INDEMNITY OR OTHERWISE REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9.4
Contributory liability: Each party’s liability to the other party in connection with the Agreement will be reduced proportionately by the extent to which the acts or omissions of the other party caused or contributed to the relevant liability, losses or damage suffered or incurred by the other Party.
9.5
Mitigation of liability: Each party must take reasonable steps to mitigate any liabilities, losses or damages it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement (including any amount sought under the indemnity at clause 8).
For any dispute between the parties, both parties agree to first contact the other party in writing and refer such dispute to a senior executive officer of each party who will use best commercial efforts to resolve the dispute informally and in good faith. If the dispute is not resolved within thirty (30) days of the written notice of dispute, then either party may commence proceedings in any court or tribunal of competent jurisdiction. Nothing in this clause 10 prevents either party from seeking urgent interim or interlocutory or equitable relief from a court of competent jurisdiction as necessary to prevent an actual or threatened infringement of the Agreement, to preserve property or to prevent irreparable harm.
11.1
Waivers and Severability: Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of the Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of the Agreement remains in effect.
11.2
Force majeure: No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labour disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
11.3
Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided that either party may assign the Agreement in its entirety, with notice to the other party but without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Any attempted assignment in violation of this clause will be null and void. The terms of the Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.4
Entire agreement: The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement. To the maximum extent permitted by Applicable Law, each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any warranty or representation that is not set out in the Agreement.
11.5
No agency: No agency, partnership, joint venture, or employment is created as a result of the Agreement and neither party has any power or authority to act for or to assume any obligation or responsibility on behalf of the other party or to bind the other party to any agreement.
11.6
Delivery of notices: All notices under the Agreement will be in writing and will be deemed to have been duly given: (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by e-mail; (c) the day after it is sent, if sent for next day delivery by a recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
11.7
Governing law: The Agreement will be governed and interpreted by the laws of New Zealand and the New Zealand courts will have exclusive jurisdiction over any dispute or lawsuit concerning matters involving the Agreement.
11.8
Amendments: Subject to clauses 3.1 and 11.9, no variation to the terms of the Agreement will be of any force or effect unless it is in writing and agreed by the parties.
11.9
Permitted updates: Notwithstanding clause 11.8, we reserve the right to update the Terms and/or Privacy Policy at any time by posting a revised version at www.goideally.com, provided that and the updated Terms and/or Privacy Policy (as applicable) shall only then apply:
(a)
to any new Order Forms entered into following such update; and
(b)
for any Order Forms existing and in force at the time of the update that auto-renew for Renewal Period(s), on and from the commencement date of the next Renewal Period, provided that if you do not agree to such update you may terminate the applicable Order Form at any time in advance of the expiry of the Initial Period or the then-current Renewal Period (notwithstanding clause (b)), in which case the Order Form ends on expiry of the Initial Period or the then-current Renewal Period (as applicable). For any such Order Forms existing and in force that auto-renew for Renewal Period(s), we will notify you by email of any material updates to the Terms (such as changes to fees, existing service scope, termination rights or your obligations, but excluding the addition of provisions relevant to new service lines or products).
11.10
Counterparts: An Order Form may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy of the Order Form to the other party.
Except when expressly provided otherwise, the definitions in this clause apply in the Agreement.
Affiliate of a party means any legal entity in which such party, directly or indirectly, holds more than 50% of the entity’s shares or voting rights, as long as that interest is maintained.
Agreement means the terms and conditions of all Order Form(s) entered into between the parties, the Terms and our Privacy Policy, and any amendments to those documents from time to time.
App means the Software and App Data presented in an online application hosted by us and which may be accessed by you and your Permitted Users (via the web application) and includes the website currently located at www.goideally.com.
App Data means all data, information and Insights provided or made available by us to you as part of the Services that is accessible by you in the App, regardless of format and delivery method, but excludes any User Data.
Applicable Law means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.
Confidential Information means the Agreement and any information that is not public knowledge that is directly or indirectly obtained from the other party in the course of, or in connection with, the Agreement and the provision and use of the Services (regardless of whether identified as such or not), and includes:
(a) the Proprietary Information of each party.
(b) the terms of the Agreement and the commercial arrangements between the parties;
(c) any information that the other party knows, or ought to know, is confidential; and
(d) trade secrets, know-how, specifications, inventions, processes or initiatives which are of a confidential nature.
End Date means the ‘End Date’ set out in an Order Form.
Fees means the fees payable by you for the Services as set out in an Order Form (as varied from time to time in accordance with the Agreement).
Good Industry Practice means exercising the degree of skill, diligence, prudence, foresight, and care which would reasonably and ordinarily be expected from a skilled and experienced provider of services or software products similar to those contemplated under the Agreement, operating in similar circumstances, and using commonly accepted methodologies and practices.
Ideally has the meaning set out in the Introduction to the Terms.
Ideally Data means:
(a) App Data;
(b) Survey Data; and
(c) any metadata generated by us and the Services in connection with your use of the Services, regardless of format and delivery method, but excluding any User Data.
Insights means insights, including analysis, interpretations, conclusions, or actionable information (including trends, patterns, correlations, predictions, or other informational outputs that provide value or inform decision-making) provided by Ideally in connection with the Agreement (including as a form of deliverable).
Intellectual Property means all present and future industrial and intellectual property rights whether conferred by statute, at common law or in equity, including all patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights (whether registrable or unregistrable), including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Order Form means an Order Form entered into between the parties.
Payment Terms means the payment terms governing timing of invoices and payments set out in an Order Form.
Permitted User means your representatives who are authorized by you to access the Services for the purposes permitted under the Agreement.
Personal Information means (1) any information that, alone or in combination, directly or indirectly, relates to, or is capable of being associated with, or could reasonably be linked to, or describes, an identified or identifiable natural person or group of persons, including, for example, direct identifiers such as name or email address, or indirect identifiers such as IP address, device ID, or customer ID, or a combination of data that enables identification, and (2) any information as defined by similar terms under any relevant Privacy Laws.
Privacy Laws means any privacy or data protection laws or regulations in any jurisdiction (as amended from time to time) applicable to the Services performed by us under the Agreement including, without limitation, any applicable U.S. federal and state laws (e.g., the California Consumer Privacy Act), any applicable UK or European laws (e.g., the General Data protection Regulation (EU) 2016/679), any applicable Singapore law (e.g., the Personal Data Protection Act 2012), any applicable Australian law (e.g., the Privacy Act 1988) and any applicable New Zealand law (e.g., the Privacy Act 2020).
Privacy Policy means the privacy policy posted at www.goideally.com.
Proprietary Information means business, technical or financial information relating to the relevant party’s business. Our Proprietary Information includes non-public information regarding features, functionality and performance of the Services and Software.
Purpose means the purpose set out in an Order Form.
Renewal Notice Period means the ‘Renewal Notice Period’ set out in an Order Form.
Services means those Services agreed to be provided to you in an Order Form.
Software means the Ideally platform software application and any software, documentation or data related to the Services and/or made available to you, and includes any maintenance releases or updates to that software from time to time.
Start Date means the ‘Start Date’ set out in an Order Form.
Survey Data means questions, responses and any related information or data collected from or related to the surveys conducted by or on behalf of Ideally in connection with the provision of the Services.
Taxes means taxes, levies, duties or other charges of any kind imposed by any governmental authority, including but not limited to sales, use, goods and services, value-added, excise, withholding, income, payroll, and other taxes, as well as any interest, penalties, or additions thereto.
Term has the meaning set out in clause 2.1(a).
Terms has the meaning set out in the Introduction to this document, as amended from time to time.
User has the meaning set out in the Introduction to the Terms.
User Data means any data, information, text, content or other materials which you provide to us in connection with the Agreement but, for clarity, does not include any data, information, text, content or other materials already held by us prior to any supply by you to us, any metadata generated by us and the Services in connection with your use of the Services or any Survey Data.
