Igniyte Alerts and Monitoring
Igniyte Services terms and conditions – Last updated 2 May 2017
This agreement consists of: these Services terms and conditions (“T&Cs”), the Service Level Agreement (“SLA”), and an ordering document and/or web-based interface specifying the Services that we will provide to you (“Order Form”) (collectively, the “Agreement”). You are the party identified on an Order Form as a client or customer and we refer to you as “you”.
We are Igniyte Limited (doing business as Igniyte), and we refer to ourselves as “we”, “us”, “our” or “Igniyte”. Our registered office address is at the Round Foundry Media Centre, Foundry Street, Leeds, LS115QP, United Kingdom. Our company number is 6830265 and our VAT number 970 6610 16.
1.1. Capitalised terms are defined below or otherwise in-line in this Agreement.
“Applicable Law” means any applicable statutes, laws, rules, regulations, codes and ordinances, any judicial or administrative court rulings or judgments that have binding precedent, or any other binding requirement or duty applicable to a party.
“Analysis” means our analytic insights about Igniyte Data and/or Your Data, including a Mention’s sentiment, an author’s or website’s ranking, or any other analyses.
“Igniyte Alerts” means our social media intelligence application in which we create and save Queries and that displays data and Analysis.
“Igniyte Data” means any Mention, any other information relating to or about a Mention, or any other information within our database that forms part of or is related to the Services (but excluding Your Data).
“Documentation” means our online user guides, documentation, help and training materials, and rules and restrictions, as updated by us from time to time.
“Mention” means a specific piece of information that satisfies a Query, including a blog entry, a Tweet, or a Facebook post.
“Query” means a combination of words, phrases, categories, and/or search operators used to define a search of our database.
“User” means an individual you have authorised to use the Services, including any individual whom you have so authorised.
“Your Data” means data that you import into the Services.
2. WHAT YOU CAN EXPECT FROM US
2.1. The Services: We will provide to you the Igniyte services set out in an agreed Order Form (“Services”) in accordance with our standard SLA’s, subject to this Agreement’s terms and conditions.
2.2. Types of account: Your account will be an Igniyte Alerts account.
2.3. Offer: An Order Form is an offer by us to provide you the Services set out on that Order Form. An Agreement is formed and effective when we receive the signed and/or agreed Order Form from you.
2.4. Processing of Your Data: We will maintain appropriate administrative, physical, and technical safeguards for protecting the security, confidentiality, and integrity of Your Data. Those safeguards will include reasonable measures for preventing access, use, modification, or disclosure of Your Data by our personnel except: (a) to provide the Services and prevent or address service problems; (b) as compelled by Applicable Law; or (c) as you expressly permit in writing.
2.5. Warranties and exclusions: We warrant that we will provide the Services with reasonable skill and care and maintain all licences, consents, and permissions necessary to perform our obligations under this Agreement. Other than as set out elsewhere in this Agreement, to the maximum extent allowed by Applicable Law, we exclude all other warranties, conditions, representations, or other terms (whether express or implied).
2.6. Fair Use: All Queries are subject to fair use limits, which we reasonably define from time to time in our sole discretion. For example, you will violate fair use limits if we believe a Query tracks all, or a significant part, of our database (for example, searching for high traffic keywords like ‘’youtube’ in one Query). Where we reasonably believe, a Query has violated these fair use limits, we reserve the right to prevent the Query or only return a sample of Mentions.
2.7. Regional restrictions: An Order Form may designate a particular region or territory (“Region”) in which we are to provide the Services. The Fees are based on the Services provided in that Region only. We reserve the right to limit Users who are outside of the Region from using or accessing some or all the Services, or to charge you additional Fees for such use or access.
2.8 Coverage: Due to privacy policies on some platforms e.g. Facebook there may be instances where Igniyte cannot legally capture an online mention. Igniyte will endeavour to provide a list of any of these platforms wherever possible in advance of setting up your service.
2.9 Keywords: Igniyte reserves the right to refine your keyword searches to improve your results and/or to adhere to the terms & conditions set out here.
2.10 Service Downtime: Igniyte cannot be held liable for server downtime or data loss in any circumstance unless due to direct negligence.
3. WHAT WE EXPECT FROM YOU
3.1. Cooperation: In respect of customised reports by our professional services team (each a “Deliverable”), any timeline we provide to you for completion of a Deliverable is an estimate only and, in any event, is subject to your good faith cooperation with us. If you fail to timely provide us with any information or resources we reasonably need to complete your Deliverable, there may be delays in performance, for which we exclude all liability.
3.3. Password protection: You are solely responsible for ensuring that the main user IDs and passwords that may be required for your Users to use Services are kept safe and confidential. You will promptly notify us upon discovery if the security of a user ID or password is, may have been, or may be compromised.
3.4. Data processing. You will, and you will procure that all Users, comply with Applicable Law, including Applicable Law relating to or about data protection, privacy and information security, whether now or in the future, when processing any data in connection with the Services (including in respect of any Exported Data and Your Data).
3.5. You agree not to do any of the following: You will not use the Services: (a) other than as permitted elsewhere in this Agreement, to: (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Services in any form or media or by any means; (ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Services; or (iii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, create derivative works of, or commercially exploit or make available the Services to a third party (save as expressly permitted by us elsewhere in this Agreement in respect of a Igniyte for Agencies Account); (b) for any purpose which infringes a third party’s rights (including a third party’s privacy rights or intellectual property rights); (c) to violate Applicable Law; (d) to communicate any material which is illegally or unlawfully obscene, defamatory, offensive or abusive; (e) for spamming, hacking or similar activities; and/or (f) for any other use which we may determine, within our reasonable discretion, may be detrimental to us or our customers’ business operations, reputation, and/or goodwill.
3.6. Contacting us: You may identify a main User, as set out on an Order Form, who may contact us (the “Key Supported User”). We reserve the right to refer you to a Key Supported User if a non-Key Supported User contacts us for any reason via any method.
4.1. Paying the Fees: You must pay us the fees for our Services (“Fees”) as set out in an applicable Order Form. If you delay providing us with the payment of the Fees, we reserve the right to suspend or cancel the Service provision.
4.2. Services upgrade: You may be able to incrementally upgrade the Services during the term of this Agreement. If you request upgraded Services via any method, including via email, such request is also an agreement by you to pay any additional Fees associated with such upgraded Services. Although you can upgrade the Services at any time, you cannot downgrade the Services or the Fees during the term of this Agreement.
4.3. Taxes: The Fees are exclusive of any legally applicable taxes, levies, duties or similar governmental assessments of any nature, including goods and services, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorised by the appropriate taxing authority.
4.4. Increases: On or after each anniversary of the effective date of this Agreement, we reserve the right to increase the Fees by the greater of: (a) the most commonly accepted measure (as determined by us in good faith) of inflation of the currency of the Fees at the date of the increase; or (b) 3.5%.
4.5. Enforcement Costs: To the maximum extent allowed by Applicable Law, we reserve the right to collect from you our reasonable costs and necessary disbursements and legal and attorney fees incurred in enforcing this Agreement, including any costs for the collections of Fees from you.
5. CONFIDENTIAL INFORMATION
5.1. Confidential Information: Confidential Information means any information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is expressly marked as confidential or that a reasonable person under the circumstances would understand to be confidential. Our Confidential Information includes Igniyte Data, trade secrets, non-public copyrighted materials, including the source and object code for the Services, other non-public technical information about the Services, business or financial information, information about upcoming service releases, our product roadmap, and (subject to our rights under section 10.4) this Agreement. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
5.2. Strict confidence: Each party will hold in strict confidence, and will not use other than for the purposes of performing its obligations under this Agreement and/or using the Services, all Confidential Information of the other party. Nothing in this section 5 prevents the Receiving Party from disclosing the Confidential Information of the Disclosing Party to its Affiliates, legal advisers, accountants, or other professional advisers, where required, provided that the party so disclosing will remain responsible for its obligations and for the use (and any disclosure) of the Confidential Information made by its Affiliates, legal advisers, accountants, or other professional advisers.
6. INTELLECTUAL PROPERTY
6.1. Our intellectual property rights: We, or our licensors, own all intellectual property rights in the Services, Analysis and Queries (whether written by you or us). Except as expressly stated otherwise in this Agreement, you are not granted any intellectual property rights of any kind.
6.2. Your intellectual property rights. You grant to us a non-exclusive, non-transferable, royalty-free licence to process Your Data for the purposes of providing you with the Services. You will have the necessary rights and consents in Your Data so that, as processed by us, such data will not infringe, misappropriate, or otherwise violate any intellectual property rights or other rights of any third party or violate any Applicable Law.
6.3. Deliverables and Exported Data licence: Upon your payment of the Fees and your acceptance of any Deliverables, we grant to you a worldwide, perpetual, exclusive, non-transferable, royalty-free licence to copy, maintain and use, solely for your internal business purposes, any Deliverables. In respect of Exported Data, we grant to you a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, licence to use the Exported Data in accordance with the terms of this Agreement.
6.5. Licence to use your feedback: You grant to us, and you will procure that your Users grant to us, a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your Users arising out of, related to, or in connection with the Services. If we incorporate any such feedback into our Services, neither you nor your Users will not have any rights to any part of the Services.
7. TERM AND TERMINATION
7.1. Term: The “Initial Term” of this Agreement will be one month. You can cancel your service at any time and your mentions and alerts will cease at the end of the current paid 4 week period
7.2. Mutual termination: A party may terminate this Agreement by written notice to the other party at any time if: (a) the other party is in material breach and, if remediable, following being notified in writing of such breach, the breach is not remedied within 30 days; or (b) if the other party becomes the subject of a petition in liquidation or any other proceeding relating to insolvency, receivership, administration, liquidation or assignment for the benefit of creditors.
7.3. Our termination rights: Notwithstanding anything else in this Agreement, we reserve the right, within our sole discretion, to suspend or terminate this Agreement immediately upon written notice if: (a) you fail to pay any Fees by their due date and the default in payment lasts more than 30 days after being notified in writing of the default.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1. What we’re liable for: Nothing in this Agreement excludes or limits our liability for any liability that cannot be excluded or limited under Applicable Law (such as fraud).
8.2. Losses we’re never liable for: Subject to section 8.1, each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise, direct or indirect, whether foreseeable, known, foreseen, or otherwise, for any: (a) loss of revenue or profits (of any kind); (b) loss of goodwill; (c) loss of business; (d) failure to process data adequately; (e) loss or corruption of data or information; or (f) for any special, indirect, or consequential loss, costs, damages, charges, or expenses, however arising.
8.3. Other important exclusions of loss: Subject to sections 2.5 and 8.1, we make no warranties or representations: (a) about the truth or accuracy of our Analysis or that the Services will result in any positive benefit to you, your customers, or any other third party; (b) that the Services may enable or assist you to access third party sites and we have no liability or obligation whatsoever, in respect of the same; (c) that, since the Services are dependent on information obtained via the Internet, the Internet will be available when needed, and we therefore exclude all liability due to Internet outages or other failures in communications networks and/or facilities; and (d) that the content and functionality of the Services we offer will not change and, so long as any change we make does not materially decrease the functionality or performance of the Services, we reserve the right to make changes from time to time to the Services, including offering new or changing existing Analysis or adding or removing websites or data from our database.
8.4. Liability cap: Subject always to sections 8.1, 8.2, 8.3 and 10.10, each party’s total liability, however arising, will under no circumstances exceed 110% of the total amount of Fees paid or payable to us pursuant to this Agreement for the 12 months immediately preceding the date any first claim arose.
9. MUTUAL INDEMNITIES
9.1. When you indemnify us: You agree to defend, indemnify and hold us, our officers, directors, employees, agents, and Affiliates, harmless against any claims, demands, actions, proceedings, losses, liabilities, damages, expenses and costs (including court costs and reasonable attorneys’ fees), whether direct or indirect (collectively “Losses”), arising out of, related to, or in connection with, any breach, act, omission, or non-compliance by you of any of the provisions of sections 3.5(a), 3.5(c), 3.5(e), 5, 6.2, or 6.4.
9.2. When we indemnify you: We agree to defend, indemnify and hold you harmless against any Losses arising out of, related to, or in connection with, a claim against you that your use of the Services infringes the Intellectual Property Rights of a third party (“IP Indemnity”). The IP Indemnity is subject to you: (a) giving us prompt notice of any such claim; (b) giving us the sole authority to determine whether to defend the claim ourselves, permit you to defend the claim, or settle the claim; and (c) if we permit you to defend the claim, not settling the claim without our prior written approval of the proposed settlement.
9.3. When the IP Indemnity does not apply and remedies: The IP Indemnity does not apply to the extent that the claim is based on: (a) a modification of the Services by anyone other than us; (b) your use of the Services in a manner contrary to your obligations under this Agreement or our reasonable instructions; or (c) your continued use of the Services after we have notified you of the alleged or actual infringement and requested you to stop using the Services. In the defence or settlement of any claim relating to the IP Indemnity, we may: (i) procure the right for you to continue using the Services; (ii) replace or modify the Services so that they become non-infringing; or (iii) if (i) and (ii) are not reasonably available to us, we may terminate this Agreement (in whole or in part) on 30 days’ notice to you and refund you any prepaid Fees covering the remainder of the term of the terminated Services.
10.1. Privacy: We reserve the right to monitor your use of the Services at any time. Our Privacy Statement has additional information about our data privacy practices.
10.2. Rules of interpretation: The following rules of interpretation apply to this Agreement: (a) the words “include”, “including”, “in particular” or “for example” are deemed to have the words “without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) for the avoidance of doubt, references to “will” are deemed to place a legal obligation on a party to do, or not to do, whatever follows “will”.
10.3. Force Majeure: Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications, or other services (“Force Majeure”).
10.4. Publicity: We will not issue a public statement or communication, or otherwise disclose that you are a customer, without your prior written consent.
10.5. Invalidity: If any term of this Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.
10.6. No waiver: Either party’s delay or failure to enforce a term of the Agreement is not a waiver of that right and does not prevent that party from later enforcing that or any other term.
10.7. Notice: Each party will deliver all notices in respect of legal service or material breach by recorded delivery: in respect of Igniyte, to our registered office address as set out above; and in respect of you, to your address as set out in an Order Form. Any notices in respect of any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, you will send such notices to [email protected] and we will send such notices to you to via an email address listed in any Order Form. Notice sent by recorded delivery is received three London, UK business days after posting and email notice is received 24 hours after it is sent.
10.8. Assignment: You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with this Agreement or any right, benefit or interest under it, nor transfer or novate (or sub-contract any of your obligations under it) (each of these, an “Assignment”) without our prior written consent, and any Assignment without our prior written consent is null and void.
10.9. Anti-bribery: The parties will: (i) comply with all Applicable Law relating to anti-bribery or anti-corruption; (ii) not engage in any act which, if it had occurred in the United Kingdom or the United States would have violated Applicable Law relating to anti-bribery or anti-corruption; and (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.
10.10. Entire agreement: This Agreement, including materials incorporated herein by reference, constitutes the complete and exclusive statement of agreement and understanding between the parties, which supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written, with respect its subject matter. You acknowledge and agree that no representations were made prior to the entering into of this Agreement and that, in entering into this Agreement, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made), of any person (whether party to this Agreement or not), other than as expressly set out or referred to in this Agreement. Nothing in this Agreement will exclude or limit our liability for fraudulent misrepresentations or will exclude (but this Agreement does limit), our liability for any fundamental misrepresentation. The only remedy available to you for breach of this Agreement will be for breach of contract under the terms of this Agreement.
10.11. Order of priority: If there is a conflict between any part of this Agreement: an Order Form prevails over these T&Cs, which prevails over the SLA. The English version of these T&Cs prevails over any non-English version.
10.12. Third party rights: Nothing in this Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Agreement even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term.
10.13. No agency: This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.14. Waiver of Jury Trial: This is important, please read: each party waives all rights to jury trial in any legal proceedings arising out of or relating to this Agreement (if any).
10.15. Governing law and jurisdiction: Each party agrees to the applicable governing law and to the exclusive jurisdiction of the applicable courts, set out in the table below.
|If you are domiciled in:||The governing law is:||The courts having exclusive jurisdiction are:|
|Australia, New Zealand, or a country in Europe, the Middle East, Africa, Central America, South America, or the Caribbean||English||English|
|United States of America or Canada||New York and controlling United States federal law, without regard to choice or conflicts of law rules||New York City|
|A country in Asia or the Asia Pacific region||Singapore||Singapore|