ProQuo AI Terms of Use

PROQUO AI TERMS OF USE (UK)
 
28th May 2021
 

1. TERMS OF USE

1.1 These terms of use (the “Terms of Use”), together with the Order Form and any

documents referred to as forming part of them (collectively, the “Agreement”) set out

the terms on which you and your employees, agents, independent contractors, and

any other third parties who are authorised by you to use the Platform in accordance

with the Agreement (“Authorised Users”) may make use of the services accessible

from:

(a) our website at proquoai.com (the “Website”); and
(b) any accompanying mobile application we may allow you to use now or in the
future (the “App”).
 

1.2 In the Agreement, the App, the Website, and all back-end functions which are

provided through the App and the Website are referred to as the “Platform”.

1.3 The Platform is a tool for collecting and analysing marketing and survey data for your

internal business purposes (the “Purpose”), and you may only use the Platform for the

Purpose.

1.4 You may register for an account with us (“Subscription Account”) on the Platform by

completing and submitting the account registration form. The Agreement shall

commence on the effective date specified in your Order Form (“Commencement

Date”) and shall terminate on the date the Agreement terminates or expires in

accordance with its terms (“Subscription Term”).

1.5 In consideration of you agreeing to abide by the Agreement and payment of the

Subscription Fees (as defined below), we grant you a limited, non-transferable, nonexclusive,

revocable licence to permit the Authorised Users to use the Platform

(including the Platform Data) for the Purpose from the Commencement Date until

termination or expiry of the Subscription Term, subject always to the terms of the

Agreement.

2. INFORMATION ABOUT THE PARTIES

2.1 The Platform is operated by Proquo AI Limited (“we” or “us”). We are registered in

England under company number 09569094 and have our London offices at 5a Bear

Lane, Southwark, London, SE1 0UH. Our VAT Registration number is 215260150 and

references to “our” shall be construed accordingly.

2.2 References to “you” in the Agreement will refer to the duly incorporated entity whose

legal status is recognised under the laws of the territory in which it is incorporated

which holds the Subscription Account (and references to “your” shall be construed

accordingly).

3. OTHER APPLICABLE TERMS AND RELATED THIRD PARTY SERVICES

3.1 These Terms of Use also refer to the following documents which you agree that you

have read:

(a) our Privacy Notice (the “Privacy Notice”), which sets out the terms on which we
may process personal data you provide to us as a controller, and information
about the cookies we use on the Platform; and
(b) if provided to you, our Platform Policy (the “Platform Policy”), which sets out
additional terms that apply to your use of the Platform and you agree to comply
with when using the Platform.

3.2 You shall also be subject to any rules or policies applied by any app store provider

from where you downloaded the App (if applicable).

3.3 You are responsible for making all arrangements necessary for you to access the

Platform, including subscription to any network required to access internet or mobile

services (“Networks”) and for all problems, conditions, delays, delivery failures and

other loss or damage arising from or relating to your connection to the Networks. You

will also be responsible for obtaining permission from the owner(s) of the device(s)

used to access the Platform (“Devices”). You are responsible for any charges which

may apply for use of any Networks and/or Device(s), including data usage.

4. CHANGES TO THESE TERMS OF USE

4.1 We may revise these Terms of Use and any documents referred to as forming part of

the Agreement (other than the Order Form) from time to time. We will make any

revised documents available on the Platform. Any material changes to the Terms of

Use shall be notified to you via the Platform or by other means and you shall have a

chance to review and accept the changes before continuing to use the Platform.

Changes to the Terms of Use shall not be retrospective.

4.2 From time to time updates to the App (if applicable) may be issued through the

relevant app store. Depending on the update, you may not be able to use the Platform

via the App until you have downloaded the latest version and accepted any new Terms

of Use.

5. THE SERVICES

5.1 The Platform contains tools and interactive features that we have provided for the

Purpose (the “Services”) which are selected by you and which we agree to provide to

you on the terms of the Agreement.

5.2 Upon selection of Services, we will send you an order form for your review and

acceptance which will detail:

(a) the Services you have chosen to receive;
(b) the relevant charges for the Services (“Subscription Fees”);
(c) the effective date of the Agreement; and
(d) the relevant subscription model, as described in clause 6, which you have
chosen,
(the “Order Form”).

5.3 The Order Form shall form part of the Agreement and shall not constitute a separate

agreement to the Terms of Use. In the event of any conflict or inconsistency between

(1) the Order Form; (2) these Terms of Use; and (3) any other document referred to in

this Agreement, the parties agree that a term contained in a document higher in the

list shall have priority over one contained in a document lower in the list.

5.4 Once you have entered into an Order Form with us, we will invite you to attend an

introductory session with us, following which you will be a “Subscriber” and shall have

full access to the Services you have chosen to receive.

5.5 Some parts of the Services may only be provided to you once we have received an

instruction from you to commence provision of the same. Once received by us, such

an instruction cannot be cancelled by you.

5.6 Additional features to the Services (“Upgrades”) may be added by you as a Subscriber

by notifying us in writing, and if we agree to provide the Upgrades, we will issue you

with an update to your Order Form (“Order Form Update”) indicating the Upgrades

to be added to your Service Subscription (as defined below) and the relevant

Subscription Fees. Once you and we have accepted the Order Form Update

(including by electronic signature), this shall constitute a variation of the Order Form,

solely with respect to the Upgrades. The Service Subscription shall remain otherwise

unchanged and Subscription Fees for the Upgrades will be charged as specified in the

Order Form.

5.7 If you wish to cancel an Upgrade that you have ordered, you must notify us in writing,

and if we agree to cancel the Upgrade, we will issue you with an Order Form Update

indicating your updated Service Subscription and Subscription Fees and the effective

date for such changes. Once you have accepted the Order Form Update (including by

electronic signature), this shall constitute a variation of the Order Form solely with

respect to the cancelled Upgrades.

5.8 We shall use our reasonable endeavours to ensure that the Services are available at all

times during the Service Subscription, except for reasonable scheduled downtime for

system upgrades and maintenance, or during periods where wider internet services

are unavailable or compromised, but we do not guarantee that the Services will always

be available or error free. We may modify the Services from time-to-time provided any

such modification does not have a material adverse impact on the Services.

5.9 We shall not be liable to you in relation to delayed completion or performance of any

of our obligations under the Agreement to the extent to which such delay or failure is

the result of any act or omission by you or any Authorised User.

5.10 The Platform and any recommendations we provide are intended to provide general

information only. By their nature, the information and recommendations provided

involve numerous assumptions, known and unknown risks and uncertainties, both

general and specific, that contribute to the possibility that the predictions, forecasts,

projections and other forward looking information will not occur, which may cause

actual performance in future periods to differ materially from any estimates or

projections or future performance or results expressed or implied by such

recommendations or information. We are under no obligation to update or revise any

recommendations or information, whether as a result of new information, future events

or otherwise, after the date on which the recommendations or information are

produced or to reflect the occurrence of unanticipated events. You should not place

any reliance on any recommendations or information, and you remain solely

responsible for any actions or decisions you take regarding the operation of your

business.

6. SUBSCRIPTION MODEL

6.1 We provide the Services to you as a recurring paid subscription (“Service

Subscription”). The Service Subscription shall have an initial period of a duration as

specified in the Order Form (the “Initial Period”).

6.2 On the date of expiry of the Initial Period, unless otherwise specified in the Order

Form, your Service Subscription shall automatically renew for further consecutive

subscription periods equal to the Initial Period, each such period being a “Renewal

Period”, until your Service Subscription is terminated in accordance with the

Agreement, including the cancellation right set out in clause 9.1.

6.3 Upgrades added in accordance with clause 5.6 shall be provided on the same terms

as your original Services, save that the start date and fees for such Upgrades shall be

as set out in the relevant Order Form Update.

7. AUTHORISED USERS

7.1 A Service Subscription shall include access for up to five distinct natural persons as

Authorised Users. We may permit you to add additional Authorised Users, subject to

payment of any additional fees as notified by us.

7.2 In relation to the Authorised Users, you undertake that:

(a) the maximum number of Authorised Users you authorise to access and use the

Services shall not exceed the number set out in clause 7.1 or which we have

otherwise agreed with you from time to time;

(b) each Authorised User will be required to use an email address, username,

password or other combination of identifying information required by us

(“Identification Data”). Authorised Users must keep their Identification Data

confidential and not disclose it to any third party. If an Authorised User knows

or suspects that anyone other than them knows their Identification Data, they

must immediately change their Identification Data and promptly notify your

designated Customer Service Representative.

(c) you will not permit the Identification Data of an Authorised User to be used by

more than one individual unless it has been reassigned in its entirety to another

individual with the first individual no longer having any right to use that

Identification Data;

(d) you shall maintain a written, up to date list of current Authorised Users and

provide such list to us within 2 business days of receiving written request from

us to do so;

(e) you shall permit us or our designated auditor to audit the Services in order to

establish compliance with the Agreement, such audit to be carried out at our

expense on reasonable prior notice in such a manner as not to substantially

interfere with your business; and

(f) if an audit reveals:

(i) that any password has been provided to any individual who is not an

Authorised User, then without prejudice to our other rights, you shall

promptly disable such passwords and we shall not issue any new

passwords to any such individual; and/or

(ii) that you have underpaid Subscription Fees in respect of the number of

Authorised Users accessing the Services, then without prejudice to our

other rights, you shall pay us an amount equal to such underpayment

as calculated in accordance with the prices for each Authorised User

under your current Service Subscription within 10 business days of the

date of the audit.

7.3 You shall use all reasonable endeavours to prevent any unauthorised access to, or use

of, the Services and, in the event of any such unauthorised access or use, promptly

notify us.

7.4 You are responsible for any activity on the Platform arising out of any failure to keep

Identification Data confidential, and may be held liable for any losses arising out of

such a failure.

8. YOUR USE OF THE SERVICES

8.1 You warrant, represent and undertake:

(a) that you are accessing the Platform in the course of a business;

(b) that you are under no legal restriction from entering into a contract with us and

complying with the Agreement;

(c) that your submitted details (including the details submitted on registration and

any Subscriber Data (as defined below)) are true and accurate and you have

sole responsibility for the legality, reliability, integrity, accuracy and quality of

all such submitted details;

(d) that you meet any further criteria we may ask you to confirm at the point of sign

up or by subsequent declaration;

(e) to provide us with:

(i) all necessary co-operation in relation to the Agreement; and

(ii) all necessary access to such information as we may require;

in order to provide the Services, including but not limited to Subscriber Data

(as defined below), security access information and configuration services;

(f) if the Platform Policy has been provided to you, that you have read and will

comply with the Platform Policy;

(g) without affecting your other obligations under the Agreement, to comply with

all applicable laws and regulations with respect to your activities under the

Agreement;

(h) to carry out all other responsibilities set out in the Agreement in a timely and

efficient manner;

(i) to ensure that the Authorised Users use the Services in accordance with the

Agreement and you shall be responsible for any Authorised User’s acts or

omissions (including any breach of the Agreement);

(j) to obtain and maintain all necessary licences, consents, and permissions

necessary for us, our contractors and agents to perform their obligations under

the Agreement, including without limitation the Services; and

(k) to ensure that your network and systems comply with the relevant

specifications provided by us from time to time.

8.2 You will not during the course of your use of the Services: (i) access, use, upload, store,

distribute or transmit any software bugs, viruses, Trojan horses, spyware, scareware,

worms, phishing attacks, distributed denial-of-service attacks or other harmful codes

(“Viruses”); or (ii) access, use, upload, store, distribute or transmit any material, that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or

racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual

orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to our other rights, to remove

and/or disable your access to any material that breaches the provisions of this clause.

8.3 You will not:

(a) except as may be allowed by any applicable law which is incapable of exclusion

by agreement between the parties and except to the extent expressly

permitted under the Agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame,

mirror, republish, download, display, transmit, or distribute all or any

portion of the Platform (as applicable) in any form or media or by any

means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer

or otherwise reduce to human-perceivable form all or any part of the

Platform;

(b) use the Platform or the Services for anything other than as expressly permitted

under the Agreement;

(c) access all or any part of the Services in order to build a product or service which

competes with the Platform;

(d) use the Services to provide services to third parties;

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or

otherwise commercially exploit, or otherwise make the Services available to any

third party except the Authorised Users;

(f) attempt to obtain, or assist third parties who are not Authorised Users in

obtaining, access to the Services; or

(g) introduce, or permit the introduction of, any Viruses into our network and

information systems.

9. TERMINATION

Your Right of Termination

9.1 Unless otherwise specified in the Order Form, you may terminate the Agreement at

the end of the Initial Period or a Renewal Period by giving us no less than seven (7)

days’ written notice prior to the end of the Initial Period or the then-current Renewal

Period (as applicable) by contacting your designated Customer Service

Representative.

Our Right of Termination

9.2 We may terminate the Agreement at the end of your Initial Period or Renewal Period

by giving no less than seven (7) days’ written notice to you prior to the end of the Initial

Period or the then-current Renewal Period (as applicable) by contacting you at the

email address associated with your Subscription Account.

9.3 If at any time we become unable or if we reasonably believe it has become materially

more difficult for us to provide the Services to you (other than due to our act or

omission), we may terminate the affected Service or the Agreement (including the

Order Form) on a reasonable period of written notice to you.

9.4 If we terminate your Services or the Agreement in accordance with clause 9.3, we will

refund any pre-paid Subscription Fees for the period after which the termination takes

effect, less any irrecoverable costs we have already incurred in the provision of the

relevant Services (if any).

9.5 We may terminate the Agreement or suspend your rights under it with immediate

effect by giving notice to you if:

(a) you commit a material breach of the Agreement where such breach is

irremediable or (if such breach is remediable) you have failed to remedy that

breach within a period of thirty (30) days after being notified in writing to do

so;

(b) in our reasonable opinion, you are using the Platform inappropriately,

incompetently, maliciously or in any way that may constitute derogatory

treatment of the Platform or might bring us into disrepute or have a prejudicial

effect on our image or business; or

(c) we reasonably consider your continued use of the Platform to be prejudicial to

the Platform and/or other Subscribers or to have a prejudicial effect on our

image or business.

Effects of Termination

9.6 On termination or expiry of the Agreement (or part thereof) for any reason, all the

rights, licences and benefits granted to you under the Agreement (or, if applicable,

the terminated or expired part thereof) shall immediately terminate. On termination or

expiry of the Agreement you will no longer have access to the Platform or, without

prejudice to clause 15, any data stored on the Platform.

9.7 On termination or expiry of the Agreement (or part thereof) for any reason, any rights,

remedies, obligations or liabilities of the parties that have accrued up to the date of

termination, including the right to claim damages in respect of any breach of the

Agreement which existed at or before the date of termination shall not be affected or

prejudiced.

9.8 Any provision of the Agreement which expressly or by implication is intended to come

into force or continue in force on or after termination or expiry of the Agreement (or

part thereof) shall remain in full force and effect.

9.9 In the event of termination for any reason or expiry of this Agreement (or part thereof),

without prejudice to our other rights, payment will be due to us in respect of any

Subscription Fees incurred prior to the date that such termination or expiry takes

effect.

10. CHARGES

10.1 You shall pay us the Subscription Fees for the Service Subscription as set out in your

Order Form from the effective date specified in the Order Form. Upgrades shall be

charged for in accordance with clause 5.6.

10.2 You shall provide valid, up-to-date and complete credit card details or any other valid,

up-to-date and complete contact and billing details on registration of your

Subscription Account.

10.3 The payment method linked to your Subscription Account shall be automatically

charged the Subscription Fees on one of the following payment schedules as specified

in your Order Form:

(a) monthly in advance with the first payment to be taken on the first day of the

Service Subscription and all monthly payments thereafter to be taken on the

monthly anniversary of the commencement of the Service Subscription until the

Service Subscription terminates; or

(b) in full for the Initial Period on the first day of the Service Subscription and on

the first day of each Renewal Period thereafter until the Service Subscription

terminates,

(each a “Billing Date”).

10.4 Access to the Services after your Service Subscription commences is subject always to

receipt by us of the Subscription Fees. Failure to pay recurring Subscription Fees when

due will entitle us to terminate the Agreement or suspend the Services immediately.

10.5 Subscription Fees may be subject to foreign exchange fees or differences in prices

based on location. We may calculate the tax component of the Subscription Fees

based on the billing information that you provide us at the time of purchase.

10.6 We reserve the right to change the Subscription Fees by providing you no less than

one (1) month’s notice (a “Pricing Notice”), such change to take effect on the

commencement of your next Renewal Period. You have the right to object to the

proposed changes by notifying us in writing of your intention to terminate your access

to the Services within 21 days of the date of the Pricing Notice, in which case the

Agreement shall terminate at the end of your Initial Period or current Renewal Period

(as applicable).

10.7 If you do not object to the proposed changes within 21 days of the date of a Pricing

Notice, you will be deemed to have accepted the proposed changes and will be

charged the new prices from the commencement of your next Renewal Period.

11. DATA STORAGE

11.1 The Services may include the ability for you to:

(a) access data provided via the Platform (whether that data originated from us or

any other person except you) (“Platform Data”); or

(b) upload, store and/or otherwise provide data which was developed

independently of the Agreement and is supplied by you to us other than for

the purpose of Authorised Users accessing the Services, such as data, images,

videos and other information relating to your brand including commercial data

(“Subscriber Data”).

11.2 Subject to clause 15, to the extent the Services include the ability to access Platform

Data or Subscriber Data, access to such data shall be provided only during the

Subscription Term and may be downloaded by you from the Platform at any point

during the Service Subscription.

11.3 You may upload Subscriber Data to the Services through any of the secure means

made available to you by us on the Platform, or by any method otherwise agreed

between you and us.

11.4 You agree that you shall:

(a) only upload data to the extent that it is relevant to the Services and complies

with the data protection obligations set out in clause 15 (to the extent

applicable);

(b) not excessively or unnecessarily upload data to the Platform; and

(c) comply with the Platform Policy (if provided to you) when uploading and

accessing data to the Platform.

11.5 Subject to clause 15, on termination or expiry of your right to access the Platform under

the Agreement, we do not guarantee that you will be able to access Platform Data or

Subscriber Data stored on the Platform.

12. CONFIDENTIALITY

12.1 In the Agreement, “Confidential Information” means all confidential information in any

form disclosed by either you or us to the other party which relates to the business

and/or business affairs (e.g. the terms of any agreement with us, product information,

know-how, clients, suppliers, software, trade secrets or designs) of the disclosing party

and any other information which would be regarded as confidential by a reasonable

business person.

12.2 Each of we and you agree to keep each other’s Confidential Information confidential

and shall not:

(a) use the other’s Confidential Information other than in accordance with the

Agreement; or

(b) disclose the other’s Confidential Information to any third party other than in

accordance with the Agreement.

12.3 Any information which is already in the public domain, which is obtained by the

receiving party other than through a breach of this clause 12 or breach by a third party

of confidentiality obligations, or which we and you agree is not confidential shall be

excluded from the restriction in clause 12.2.

12.4 You and we may disclose the other’s Confidential Information where it is required to

be disclosed by law or by a governmental or regulatory authority, solely to the extent

necessary to comply with such law or governmental or regulatory authority. In such

circumstances you and we agree to give the other as much notice of the disclosure as

is legally permissible.

13. INTELLECTUAL PROPERTY RIGHTS

13.1 We, together with our licensors (as applicable), own and control all intellectual

property rights and any other rights in the Platform, the Services, the output of the

Services, the output of the Platform, the Platform Data and in the materials published

on the Platform (excluding any Subscriber Data) (together “Our IPR”). Except as

expressly stated herein, the Agreement does not grant you any rights to, under or in,

any of Our IPR.

13.2 In any case where printing, downloading or otherwise saving any page(s) or material(s)

is expressly enabled or authorised in the Platform, such functionality, and any resulting

copies may only be used if obtained during a Service Subscription, provided that any

such materials identify our branding, are not used in a manner that will or may bring

us into disrepute or have a prejudicial effect on our image or business and in any event

are only used for the Purpose.

13.3 When you provide us (including via uploads to the Platform) with Subscriber Data,

subject always to the terms set out in clause 14 and clause 15, you:

(a) grant us a worldwide, irrevocable, non-exclusive, royalty free licence to access,

store, display, transmit, reproduce, modify and distribute your Subscriber Data

(or excerpts thereof) on the Platform to the extent required to perform our

Services to you;

(b) grant us a perpetual, worldwide, irrevocable, non-exclusive, sub-licensable,

transferable, assignable, royalty free licence to use, access, store, display,

transmit, reproduce, modify and distribute your Subscriber Data (or excerpts

thereof) for our business purposes provided we do so in a manner which: (i)

does not allow other Subscribers to access or reconstruct your Subscriber Data;

(ii) does not identify your business; and (iii) aggregates the Subscriber Data into

a broader class of data with other businesses; and

(c) grant us the right to sub-license the rights licensed under part (a) above to

whom we have contractual relationships with in relation to the Platform, solely

for the purpose of providing the Services or operating the Platform, and to

otherwise permit access to or disclose your Subscriber Data to third parties if

we determine such access is necessary to comply with our legal obligations.

13.4 You warrant that:

(a) you have the rights and authority to upload and distribute your Subscriber

Data, including on the Platform, and to grant us the rights granted in the

Agreement; and

(b) any such Subscriber Data complies with the Agreement.

13.5 Notwithstanding clause 12, to the extent permissible by law we also have the right to

disclose your identity to any third party who is claiming that any Subscriber Data

uploaded by you on the Platform constitutes a violation of their intellectual property

rights.

13.6 We will not be responsible, or liable to you or any third party, for the content or

accuracy of any Subscriber Data posted by you or any other user of the Platform. Any

views expressed by other users on the Platform do not represent our views or values.

13.7 Without prejudice to our other rights under the Agreement, if you breach any provision

of the Agreement in any way, or if we reasonably suspect that you have breached the

Agreement in any way, we may remove, delete, unpublish or edit, or request that you

remove, delete, unpublish or edit any or all of your data stored on the Platform. If we

request that you remove any of your data, you shall take appropriate remedial action

with respect to any such request within 72 hours of receipt of such request.

14. DATA PROTECTION AND DATA SHARING

14.1 The following definitions apply to the Agreement:

“controller”, “data subject”“personal data”, “personal data breach”, “processor”,

“processing” and “supervisory authority”, have the meanings as defined in the Data

Protection Legislation; and

“Data Protection Legislation” means, to the extent applicable: (a) the Data Protection

Act 2018; (b) the EU General Data Protection Regulation (EU) 2016/679 (the “GDPR”);

(c) the GDPR as it forms part of the law of England and Wales, Scotland and Ireland by

virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); (d) the

Privacy and Electronic Communications Directive (2002/58/EC) (as updated by

Directive 2009/136/EC); (e) the Privacy and Electronic Communications Regulations

2003 (SI 2003/2426) (as amended); and (f) all other applicable UK or European laws

and regulations relating to the processing of personal data and privacy, as may be

amended or superseded from time to time, including where applicable the guidance

and codes of practice issued by any relevant supervisory authority from time to time.

“sub-processor” means any third parties that we use to process Subscriber Personal

Data on your behalf pursuant to this Agreement; and

“technical and organisational measures” means those measures aimed at protecting

personal data against accidental or unlawful destruction or accidental loss, alteration,

unauthorised disclosure or access, in particular where the processing involves the

transmission of data over a network, and against all other unlawful forms of processing.

14.2 With the exception of the Subscriber Personal Data, you acknowledge that in relation

to any personal data collected, processed or otherwise used by us, including any

personal data provided by Authorised Users such as Identification Data, such data shall

be processed in accordance with our Privacy Notice.

14.3 We agree and acknowledge that the Platform Data does not include any personal data.

14.4 You will disclose the personal data of Authorised Users such as Identification Data for

the purpose of Authorised Users accessing the Services on the Platform as described

in the Agreement (or as otherwise agreed in writing by the parties) (“Permitted

Purpose”), such personal data being the “Authorised Users’ Personal Data”.

14.5 We acknowledge that:

(a) you are the controller of the Authorised Users’ Personal Data and that we will

process the Authorised Users’ Personal Data as a separate and independent

controller strictly for the Permitted Purpose and comply with the obligations

set out in clause 14.7.

(b) you are the controller of any personal data contained in the Subscriber Data

and we are the processor of such personal data and we will both comply with

our respective controller and processor obligations set out in clause 15.

14.6 Nothing in the Agreement or the arrangements contemplated by it is intended to

construe either party as joint controllers with one another.

14.7 We shall each be individually and separately responsible for complying with the

obligations that apply to you and us as a controller under the Data Protection

Legislation, strictly in respect of the Authorised Users’ Personal Data for which we are

responsible for as a controller in accordance with the Agreement. In particular (and

without limitation):

(a) responding to any requests, enquiries or complaints from a data subject,

regulator or other third party (including any request by a data subject to

exercise their rights under the Data Protection Legislation), in relation to our

respective responsibilities as controllers explained above;

(b) providing reasonable assistance to the other party, in responding to any

request from a supervisory authority and in ensuring compliance with its

obligations under the Data Protection Legislation with respect to security,

personal data breach notifications, data protection impact assessments and

consultations with supervisory authorities or regulators;

(c) at all times processing the personal data in a manner that ensures appropriate

security of the personal data, including protection against unauthorised or

unlawful processing and against accidental loss, destruction or damage, using

appropriate technical and organisational measures, and the measures shall, at

a minimum, comply with the requirements of the Data Protection Legislation;

and

(d) notifying the other party without undue delay on becoming aware of any

breach of the Data Protection Legislation.

14.8 You shall ensure (and warrant to us that you shall ensure) that all processing of personal

data by you, including the submission of Subscriber Personal Data (as defined in clause

15 below) and Authorised Users’ Personal Data to us, is conducted in compliance with

all Data Protection Legislation including, without limitation, having a valid lawful basis

for doing so, the provision of any necessary information to the data subjects, the

obtaining of any necessary consents from data subjects, and the security of any such

data while held by you, in each case to enable the lawful transfer of personal data to

us for the duration and purposes for our provision of the Platform to you, the

Agreement and in accordance with the Data Protection Legislation.

14.9 You agree to indemnify and hold us, our subsidiaries, affiliates, officers, agents,

employees, advertisers and partners harmless from and against any and all claims,

liabilities, damages (actual and consequential), losses and expenses (including legal

and other professional fees) arising from or in any way related to any claim made or

brought by a data subject or other legal person in respect of any loss, damage or

distress caused as a result of any breach of this clause 14 or clause 15 or the Data

Protection Legislation by you, your employees or your agents.

15. DATA PROCESSING

15.1 Each of we and you acknowledge and agree that for the purposes of the Data

Protection Legislation, you are the controller and we are the processor in relation to

the processing by us of any personal data contained in the Subscriber Data uploaded

to the Platform (“Subscriber Personal Data”).

15.2 The types of personal data, categories of data subject, the subject matter, duration,

nature and purposes of the processing to be carried out under this clause 15 are set

out in Schedule 1 to the Terms of Use. If you wish for us to process different data

and/or for different purposes, you will promptly notify us in writing of any amendment

to Schedule 1 required to ensure that it remains accurate, up-to-date and complete. If

we approve the proposed amendment, the then current version of Schedule 1 will be

replaced by the amended version as approved by us. If we and you do not agree the

proposed amendment, we will continue to process the Subscriber Personal Data in

accordance with the then current version of Schedule 1.

15.3 We will comply with the following obligations in relation to the processing of

Subscriber Personal Data:

(a) we will comply with our obligations under the Data Protection Legislation and

ensure the protection of the rights of data subjects;

(b) we will process the Subscriber Personal Data in accordance with your written

instructions from time to time or as otherwise required by law (subject to us

first notifying you of the relevant legal requirement unless such notification is

itself prohibited by law on important grounds of public interest);

(c) we will promptly notify you if we believe, in our reasonable opinion, any of your

instructions relating to the processing of Subscriber Personal Data breaches

any Data Protection Legislation;

(d) we will only disclose the Subscriber Personal Data, and ensure that access to

the Subscriber Personal Data is limited to, those personnel who are bound by

confidentiality obligations in relation to personal data;

(e) we will implement appropriate technical and organisational measures to ensure

a level of security appropriate to the data security risks presented by processing

the Subscriber Personal Data;

(f) within 180 days following the date when we cease to provide the Services

relating to processing Subscriber Personal Data pursuant to this Agreement,

we will, at your option, delete or return to you all Subscriber Personal Data and

delete all copies except insofar as we reasonably consider it is required by law

to store such copies;

(g) we will, in the event that any Subscriber Personal Data is transferred to an

international organisation or a country (other than the United Kingdom) outside

the European Economic Area, ensure appropriate safeguards are in place in

accordance with the Data Protection Legislation;

(h) taking into account the nature of the processing of Subscriber Personal Data to

be carried out pursuant to this Agreement, we will take appropriate and

technical measures to enable you to assist you in fulfilling your obligations to

respond to any request by any data subject to exercise its rights under the Data

Protection Legislation in respect of the Subscriber Personal Data;

(i) taking into account the nature of the processing of Subscriber Personal Data to

be carried out pursuant to this Agreement and the information available to us,

we will, at your reasonable request, assist you in complying with your

obligations as set out in Articles 32 to 36 GDPR (or the equivalent requirements

of the UK GDPR, as applicable) but in each case only to the extent that your

request relates to the processing of Subscriber Personal Data by us pursuant

to this Agreement;

(j) we will, at your request, make available to you information required to

demonstrate our compliance with this clause 15 and the Data Protection

Legislation and allow for and contribute to audits, including inspections where

requested by you once per calendar year conducted by an independent third

party auditor to verify our compliance with the Data Protection Legislation and

make the confidential audit report produced as a result of such audit available

to you on request;

(k) we will use the sub-processors set out in Schedule 1 to this Agreement to

process any Subscriber Personal Data on behalf of you pursuant to this

Agreement. We will not replace any sub-processor or use any other third party

to process any Subscriber Personal Data pursuant to this Agreement without

your prior consent. We shall provide you with not less than 20 days’ notice of

any proposed changes to the list in Schedule 1 and you shall notify us in writing

of any objection to such proposed appointment within 5 days after receiving

such notice, and:

(i) if we do not receive any objection to the proposed sub-processor in

accordance with clause 15.3(k), you shall be deemed to have consented

to our engagement of such sub-processor; and

(ii) if your objection to a proposed change in sub-processor in accordance

with clause 15.3(k) is reasonable, we will attempt to re-arrange the

processing arrangement so that the proposed sub-processor is not used

to process the Subscriber Personal Data, or if not practicable, we may

terminate the Agreement by giving you not less than thirty days’ notice;

(l) we will enter into a written agreement with all sub-processors and include in

that agreement obligations on the sub-processor that are equivalent to the

obligations on us in relation to Subscriber Personal Data in this clause 15 and

we will remain fully liable to you for the acts and omissions of our subprocessors

in relation to the processing of Subscriber Personal Data; and

(m) if we become aware that we have suffered a personal data breach relating to

the Subscriber Personal Data, we will notify you without undue delay after

becoming aware of such data breach.

15.4 Subject to clause 15.3(g), you hereby acknowledge, agree and consent to us

transferring Subscriber Personal Data to any sub-processors listed in Schedule 1,

including where such sub-processors are based outside the European Economic Area,

to the extent that such transfer is necessary for the performance of the Services or our

other obligations under this Agreement.

15.5 You will comply with the following provisions in relation to the processing of Subscriber

Personal Data:

(a) you will comply with your obligations under the Data Protection Legislation

which arise in relation to this clause 15 and the receipt of the Services;

(b) you will not do or omit to do anything which causes us to breach any of our

obligations under the Data Protection Legislation; and

(c) you represent, warrant and undertake to us that you have obtained the

Subscriber Personal Data in accordance with Data Protection Legislation and

have provided (or will provide) all necessary notices to data subjects whose

personal data comprises part of the Subscriber Personal Data and have (or will

at the required time have) a lawful basis for your processing of the Subscriber

Personal Data pursuant to this Agreement so that our processing of the

Subscriber Personal Data pursuant to this Agreement complies with the Data

Protection Legislation.

16. LINKING TO THE PLATFORM

16.1 You may link to the Platform, provided you do so in a way that is fair and legal and

does not damage our reputation or take advantage of it.

16.2 You must not:

(a) establish a link in such a way as to suggest any form of association, approval or

endorsement on our part where none exists;

(b) establish a link to the Platform in any website that is not owned by you; and/or

(c) frame the Platform on any other site, or create a link to any part of the Platform

other than linking to the landing page at https://www.proquoai.com/.

16.3 We reserve the right to withdraw our linking permission without notice.

16.4 If you wish to make any use of content on the Platform, other than as set out above,

please contact your designated Customer Service Representative.

17. INDEMNITY AND LIMITATION OF LIABILITY

17.1 You agree to indemnify and hold us, our subsidiaries, affiliates, officers, agents,

employees, advertisers and partners harmless from and against any and all claims,

liabilities, damages (actual and consequential), losses and expenses (including legal

and other professional fees) arising from or in any way related to any third party claims

relating to your use of the Platform, the Subscriber Data, any violation of the

Agreement or any other actions connected with your use of the Platform (including all

actions taken under your Subscription Account and the acts or omissions of Authorised

Users). In the event of such a claim, we will endeavour to provide notice of the claim,

suit or action to the contact information we have for the account, provided that any

failure to deliver such notice to you shall not eliminate or reduce your indemnification

obligation hereunder.

17.2 The Platform is provided to you on an “as is” and “as available” basis. Except as

expressly set out in the Agreement, to the maximum extent permitted by law, we

expressly disclaim any and all warranties and conditions of any kind, whether implied

or statutory, including without limitation any implied warranties of satisfactory quality

or fitness for a particular purpose.

17.3 We do not warrant:

(a) to the maximum extent permitted by law, that the information we provide or

that is provided through or on the Platform is accurate, complete, up-to-date,

reliable or correct, or fit for any particular purpose (including use in any

advertising or marketing claims);

(b) that the Platform will meet your requirements; or

(c) that the Platform is completely secure, free of Viruses or other harmful

components.

17.4 Nothing in the Agreement will exclude or limit either party’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its

partners, officers, personnel, subcontractors or agents;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which cannot be limited or excluded by law.

17.5 Subject to clause 17.4, we shall not be liable for any of the following loss or damage,

in each case arising out of or connection with the Agreement (including as a result of

breach of contract, negligence or any other tort, under statute or otherwise), and

regardless of whether we knew or had reason to know of the possibility of the loss or

damage in question:

(a) any loss of revenue or profits;

(b) any loss of anticipated savings;

(c) any loss of business opportunity;

(d) any loss of goodwill; or

(e) any indirect or consequential loss or damage.

17.6 Subject to clause 17.4, our total liability under or in connection with the Agreement

for all claims arising in each twelve month period commencing on the Commencement

Date and each anniversary thereof (“Contract Year”), whether in contract, tort

(including negligence) or otherwise, shall in no circumstances exceed the greater of:

(a) £12,000; and

(b) 100% of the Subscription Fees paid or payable by you in that Contract Year.

18. SECURITY AND THIRD PARTY LINKS

18.1 You are responsible for configuring your information technology, Devices, computer

programs and platforms in order to access the Platform and should use your own Virus

protection software. Any subject matter downloaded or otherwise obtained through

the use of the Platform is downloaded at your own risk and you will be solely

responsible for any damage to your property or loss of data that results from such

download or use of any such material. You should also be aware that SMS and email

services are vulnerable to spoofing and phishing attacks and should use care in

reviewing messages purporting to originate from us. Always log into your account

through the Platform to review any transactions or required actions if you have any

uncertainty regarding the authenticity of any communication or notice.

18.2 We are not responsible for any delays, delivery failures, or any other loss or damage

resulting from the transfer of data over communications networks and facilities,

including the internet and you acknowledge that the Services may be subject to

limitations, delays and other problems inherent in the use of such communication

facilities.

18.3 We assume no responsibility for any of the products or services advertised or offered

by a third party through the Platform or the content of websites linked on the Platform.

Such links should not be interpreted as endorsement by us of those linked websites.

We will not be liable for any loss or damage that may arise from your use of them. We

have no control over the contents of those sites or resources.

19. MISCELLANEOUS TERMS

19.1 Interpretation. Clause headings shall not affect the interpretation of the Agreement. A

person includes an individual, corporate or unincorporated body (whether or not

having separate legal personality). A reference to a company shall include any

company, corporation or other body corporate, wherever and however incorporated

or established. Unless the context otherwise requires, words in the singular shall

include the plural and in the plural shall include the singular and a reference to one

gender shall include a reference to the other genders. Any words following the terms

including, include, in particular, for example or any similar expression shall be

construed as illustrative and shall not limit the sense of the words, description,

definition, phrase or term preceding those terms. A reference to a statute or statutory

provision is a reference to it as amended, extended or re-enacted from time to time.

A reference to a statute or statutory provision shall include all subordinate legislation

made from time to time under that statute or statutory provision. References to clauses

are to the clauses of these Terms of Use. Any notice given to a party under or in

connection with this Agreement shall be in writing.

19.2 Force Majeure. We shall have no liability to you under the Agreement if we are

prevented from or delayed in performing our obligations under the Agreement, or

from carrying on our business, by acts, events, omissions or accidents beyond our

reasonable control, including, without limitation, pandemics or epidemics, strikes,

lock-outs or other industrial disputes, failure of a utility service or transport or

telecommunications network, act of God, war, riot, civil commotion, malicious

damage, compliance with any law or governmental order, rule, regulation or direction,

accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or

sub-contractors.

19.3 Severance. If any provision (or part of a provision) of the Agreement is found by any

court or administrative body of competent jurisdiction to be invalid, unenforceable or

illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal

provision would be valid, enforceable or legal if some part of it were deleted, the

provision shall apply with whatever modification is necessary to give effect to our

commercial intention.

19.4 Entire agreement. The Agreement (including, for the avoidance of doubt, the Order

Form as amended from time to time in accordance with the Terms of Use), constitutes

the whole agreement between you and us and supersedes any previous arrangement,

understanding or agreement between ourselves relating to the subject matter it

covers. You acknowledge and agree that in entering into the Agreement you did not

rely on any undertaking, promise, assurance, statement, representation, warranty or

understanding (whether in writing or not) of any person (whether party to the

Agreement or not) relating to the subject matter of the Agreement, other than as

expressly set out herein. Nothing in this clause shall limit or exclude any liability for

fraud.

19.5 Variation. Subject to clause 4.1, 5.6 and 5.7, no variation of the Agreement (including,

for the avoidance of doubt, the Order Form) shall be effective unless it is in writing

and signed by us (or our authorised representatives).

19.6 Assignment. You may not assign, transfer, charge, sub-license or deal in any other

manner with all or any of your rights or obligations under the Agreement to any other

person. We may at any time assign, transfer, charge, sub-contract or deal in any other

manner with all or any of our rights or obligations under the Agreement.

19.7 No partnership or agency. Nothing in the Agreement is intended to or shall operate

to create a partnership between the parties, or authorise either of you or us to act as

agent for the other, and neither of you or us shall have the authority to act in the name

or on behalf of or otherwise to bind the other in any way (including, but not limited to,

the making of any representation or warranty, the assumption of any obligation or

liability and the exercise of any right or power).

19.8 Third party rights. A person who is not a party to the Agreement will have no right

under the Contracts (Rights of Third Parties) Act 1999 to enforce any of their terms.

19.9 Marketing. Notwithstanding clause 12, You agree that we may publicly identify you as

a user of the Services for the purpose of marketing and publicising our services,

including use of your logo on a list of customers on the Platform.

19.10 Governing Law and Jurisdiction. The Agreement, its subject matter and formation, and

any dispute or claim arising out of or in connection with it (including non-contractual

disputes or claims) shall be governed by and construed in accordance with the law of

England and Wales. You and we irrevocably agree that the courts of England and

Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in

connection with this Agreement or its subject matter or formation (including noncontractual

disputes or claims).

20. CONTACT US

If you need to get in touch with us, please contact your designated Customer Service

Representative.

Schedule 1 – Processing Details

The personal data, details of the processing and current sub-processors are listed below.

1. A description of the types of personal data

The personal data will be images and videos contained in the Subscriber Data and any

other associated personal data, such as names and job titles of the data subjects to

which the personal data relates, which you have lawfully obtained.

2. A description of the categories of data subjects

The data subjects will be your customers, paid actors and/or any other individuals

featured in the images and videos uploaded to the Platform.

3. The subject matter and duration of the processing of the personal data

You will upload Subscriber Personal Data to the Platform and we will process such data

for the purposes of providing brand guidance on how to better optimise and utilise

such data within the marketing campaigns.

The processing will continue for the duration of the Agreement and for a period of up

to 180 days following termination of the Agreement for any reason.

4. The nature of the processing of the personal data

The personal data will be used for the purposes of providing the Services.

5. The purpose of the processing of the personal data

The personal data will be processed:

• in order to provide the Services; and

• for storage.

6. Current sub-processors

Name of sub-processors

Services Provided

Sub-processor Location

Personal Data Location

Xero Ltd

Finance SAAS platform

United States

United States

HubSpot Inc.

Automated Marketing Provider

United States

Ireland

Mixpanel, Inc.

Customer Analytics

United States

United States

Recurly, Inc

Subscription Management Platform

United States

United States

GoCardless Ltd

Payment Gateway

United States

United States

Stripe, Ltd

Payment Gateway

United States

United States

Smartlook s.r.o.

Customer Analytics

Czech Republic

Czech Republic