END USER SERVICES AGREEMENT
Versus Africa subscriber (hereafter referred to as “Customer“) and Enterfive Inc (hereafter referred to as “Company”) hereby agree as follows:
These Terms and Conditions shall apply to Customer’s use of the Company’s subscription services, packaged professional services, all linked pages, content, products and offline components (“Service” or “Services”) identified in associated documents and digital exchanges signed or acknowledged by the parties, including any exhibits or Statements thereto (“Scope of Work” or “SOW”). These Terms and Conditions and all SOW (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Company ordering document, and no terms included in any such purchase order, complimentary/trial services or other non-Company ordering document shall apply to the Services.
2. RIGHT TO USE THE SERVICES
2.1 During the Subscription Term set forth in any SOW or subscription plan chosen online by Customer, Company grants to Customer, a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement. Company reserves the right to terminate a User’s access to the Software at any time if the User violates, or in Company’s reasonable discretion, is likely to violate, any laws or regulations.
2 .2 The Services are provided by Company from a data center facility to which Users have remote access via the Internet. Company has advised on Usage and potential best practice and Customer shall ensure that its use is guided by Company’s recommendations and/or advice.
2 .3 Company’s online platform comprised of tools, databases, APIs, and software solutions developed by Company (the “Software”) allows access to certain proprietary or licensed information, data and materials. No license or other rights in the Software and any content within the Service, exclusive of Customer Data and, are granted to Customer hereunder, and all rights not expressly granted to Customer herein are expressly reserved to Company or its licensors, as applicable.
2 .4 Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”). Customer shall ensure that Equipment complies with all configurations and specifications set forth in Company’s published documentation.
3. USAGE RESTRICTIONS AND REPRESENTATIONS
3. 1 Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Company; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations unless authorized in writing by Company, and not for the operation of a service bureau or otherwise for the benefit of a third party.
3. 2 Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Company’s provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer’s account access passwords. Customer and Company agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for acts and omissions of its Users.
4 .1 Company owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Company, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Company.
4 .2 Customer owns any data, information or material originated by Customer that Customer submits or compiles in the course of using the Services (“Customer Data”). Company has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data. Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below. Notwithstanding the foregoing, to the extent that any Customer Data is only viewable via the Software, Customer may not be able to view such Customer Data after termination of this Agreement.
5. BILLING & PAYMENT
5 .1 Customer shall pay all fees set forth in any SOW or invoice based on subscription plan chosen. All fees are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties. Customer shall pay all fees in USD unless other special alternative payment options are agreed.
5 .2 All amounts invoiced hereunder are due and payable as specified in the Invoice or on the price plan and tenure selected. Unpaid invoices that are not the subject of a written good faith dispute may be subject to a finance charge of 1.5% per month on any outstanding balance.
5 .3 On the Versus “Ask” Customer funds wallet in their dashboard and purchases Versus Credits to conduct surveys. At the end of subscription, unused Versus Credits will be allowed to accessed for a period of 3 months post subscription.
5 .4 If at any time Company determines that Customer is exceeding the Usage Rights on Versus “Listen”, Company shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within thirty (30) days of receipt of Company’s notice, Company reserves the right to charge and Customer agrees to pay Company’s then-current usage fees for such overage, even for periods of overage prior to Company’s notice.
6. TERM AND TERMINATION
6. 1 The term subscription shall begin from the date of signing this agreement. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. 2 In the event of a material breach by either party, the non-breaching party shall have the right to terminate the subscription for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail.
6. 3 Upon any termination or expiration of subscription, Customer’s right to access and use the Services covered by that subscription shall terminate. Customer acknowledges and agrees that Company has no obligation to retain Customer Data and that Company may irretrievably delete and destroy Customer Data after thirty (30) days following the termination of the Agreement or in the ordinary course of its business processes.
7. REPRESENTATIONS & INDEMNITIES
7 .1 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing directly to Customer and/or on its website, or by e-mail of any scheduled unavailability of the Services.
7 .2 (a) Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the Software as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (i) promptly gives written notice of the Claim to Company; (ii) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to Company, at Company’s cost, all reasonable assistance. Company’s indemnification obligation does not cover third party claims arising from: (1) modifications to the Software by anyone other than Company or its authorized agents and contractors; (2) use of the Software by Customer in combination with other software or equipment not provided by Company where the Software, but for such combination, would not be infringing; or (3) Customer’s failure to use the Software in accordance with the terms and conditions in this Agreement.
(b) Customer shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Company by a third party alleging that Customer Data, or Customer’s use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that Company
(i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Company of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
8. LIMITATION OF LIABILITY
Neither Party or its third-party licensors shall be liable under any contract, negligence, strict liability or other theory: (i) for error or interruption of use, inaccuracy or cost of procurement of substitute goods, service or technology or loss of business or (ii) for any indirect, exemplary, incidental, special or consequential damages. Except for a material breach of the confidentiality provisions or claims related to personal injury or property damage caused solely by Company’s gross negligence or willful misconduct, Company’s entire liability and Customer’s exclusive remedy for damages for any claims arising under or in connection with this Agreement, regardless of the cause of action, whether in contract or in tort (including without limitation, breach of warranty and negligence claims) shall be limited to Customer’s actual, awarded direct damages, not to exceed the amount actually paid by Customer under this Agreement during the twelve months immediately preceding the month in which the cause of action arose.
9. CONFIDENTIAL INFORMATION
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Accounts and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The preceding shall not prevent Company from disclosing Confidential Information to its own employees, agents, affiliates, or authorized consultants or vendors who have a need to know the Confidential Information for the purposes of this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 6.3, and, upon Customer’s request, Company shall certify to such destruction in writing.
10. COLLECTION O F INFORMATION
Notwithstanding anything else in the Agreement or otherwise, Company may monitor Customer’s use of the Services and use Customer Data in an aggregate and strictly in anonymous manner, compile statistical and performance information related to the provision and operation of the Services, for the Customer or sometimes for general industry reporting (provided that such information does not incorporate Customer Data and/or identify Customer’s Confidential Information). Company retains all intellectual property rights in such information and will always seek Customer’s consent in any of the above.
Surveys run via Versus “Ask” feature is sent at random to our Versus Scouts who act as respondents. The information they answer will only be questions formulated and sent via the dashboard to the respondents with reports available for Customer to filter accordingly. Names or private information of the Versus Scouts will never be shared, strictly only answers to questions asked.
Company may give notice applicable to Company’s general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer’s e-mail address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Company’s account information. If Customer has a dispute with Company, wishes to provide a notice under the Agreement, Customer can send written notice to Company at FV Plaza: 2nd Floor 22 Oju Olobun Street, Victoria Island, Lagos. Attention: Ugochi Chinwuba, Enterfive Inc.
12. FORCE MAJEURE
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Services upon written notice. Customer shall still be obligated to pay for all fees due up to the date of termination. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.
13. GENERAL PROVISIONS
13. 1 The Agreement, SOW and other electronic communications represent the parties’ entire understanding relating to the Services, and supersede any contemporaneous, conflicting or additional communications. The exchange of a fully executed Agreement by electronic signature shall be sufficient to bind the parties to the Terms and Conditions of the Agreement. The Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
13. 2 This Agreement shall be governed by the laws of United Kingdom & Wales.
13. 3 Failure by either party to enforce a provision of this Agreement shall not be deemed a waiver of any other provision. A waiver will not be effective unless in writing signed by the waiving party.
14. DATA PROTECTION
14.1 The Company shall in relation to any data received from Customer and processed in connection with the performance of its obligations under this Agreement.
14.2 not without the prior written consent of the Customer, disclose the contents of any data obtained in the course of this business relationship to any third party and will endeavour to prevent the unauthorized publication or disclosure of the same.
14.3 ensure that it has in place appropriate technical and organizational measures, to protect against unauthorised or unlawful processing of any data received from the Customer and ensure that adequate data security measures are established;
14.4 not make use of any data received for any other purpose without the prior written consent of the Customer.
14.5 not transfer any data outside of the origin of business of the Customer unless the written consent of the Customer has been obtained.
14.6 names or private information of the Versus Scouts will never be shared.
14.7 Comply with all relevant Data Protection Laws including General Data Protection Regulation (GDPR).
As you proceed to use this service you have full understanding and agreed to this End User Agreement.