ResponseIQ –Terms of Service

Last updated: April 24, 2018

1 About our Terms of Service

1.1 These terms (the “Terms”) explain how you may use Response IQ’s services via one of the Starter, Regular or Plus packages (the “Services”). If you wish to sign up to the Enterprise package, please contact us using the contact details in Clause 1.4 below.

1.2 You should read these Terms carefully before signing up to the Services.

1.3 By signing up to the Services, using the free trial or otherwise indicating your consent, you agree to be bound by these Terms and the documents referred to in them.

1.4 If you have any questions about these Terms, please contact us by e-mail at support@responseiq.com or by telephone on +44 208 629 5280.

2 Definitions

“Authorised Users”

means you, your employees, agents and independent contractors (as applicable) who you authorize to use the Software and Services;

“Business Day”

means any day which is not a Saturday, Sunday or public holiday in the United Kingdom;

“Confidential Information”

means information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information;

“Client Data”

means your data provided to us by you or by an Authorised User using the Software via data integration methods or manual data entry methods for the purpose of using the Services;

“Credit”

Means a connected phone call between you and the Customer’s telephone number lasting over five (5) seconds in length and up to ten (10) minutes in length. If the call duration exceeds ten (10) minutes, a second Credit shall be earned. For each ten (10) minute period thereafter, one (1) further Credit shall be earned;

“Customer”

means a visitor to your website or anyone who uses the Software in order to contact you;

“Dashboard”

means a secure online portal provided by ResponseIQ to you providing access to data relating to Customers and the Services;

“Party”

means either us or you, and together referred to as the “Parties”;

“Services”

means the subscription services provided by Response IQ to you under these Terms as more particularly described in Clause 3 below;

“Software”

means the Response IQ software application provided as a part of the Services, including both the JavaScript widget installed on the Client’s Website and the Dashboard;

“Subscription”

means your agreement with us based on one of the packages offered under the Services subject to these Terms (Starter, Regular or Plus);

“Subscription Fees”

means the fees payable by you to Response IQ for the Services;

“Virus”

means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses and other similar things or devices;

“Website”

means Response IQ’s website at www.responseiq.com

“We”, “us”,“our” or “Response IQ”

means Response IQ Ltd, company registration number 09951115 and the registered office of which is at Rocketspace, 40 Islington High St, London, United Kingdom, N1 1XB; and

“You” or “your”

means the customer (whether it is a company, partnership, sole trader, individual or other entity as the case may be).

3 Services

3.1 Response IQ is a cloud-based software provider that provides you with the Software that introduces functionality on your website that enables instant callbacks to a Customer that visits your website. The Services shall enable you to collect Personal Data of Customers who request an instant call back and the Software shall facilitate those calls.

3.2 There is a free trial option on the Website for a limited period of time currently offering two hundred (200) free Credits (the “Free Trial”).You may be required to enter your billing information in order to sign up for the Free Trial.If you do enter your billing information when signing up for the Free Trial, you will not be charged by us until the Free Trial has expired. On the last day of the Free Trial period, unless you have canceled your Subscription, you will be automatically charged the applicable Subscription Fees for the package of the Services you have chosen. At any time and without notice, Response IQ reserves the right to modify the terms and conditions of the Free Trial or cancel the Free Trial.

3.3 Following any Free Trial, you will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis, depending on the type of package you selected when purchasing a Subscription or signing up to the Free Trial. At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless you cancel it or we cancel it. You may cancel your Subscription renewal either through your online account management page or by contacting us customer support team via email support@responseiq.com.

3.4 A valid payment method, including credit card, is required to process the payment for your Subscription. You must provide us with accurate and complete billing information including full name, address, state, zip/post code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize us to charge all Subscription Fees incurred through your account to any such payment instruments.Should automatic billing fail to occur for any reason, we will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice. Except where required by law, Subscription Fees are non-refundable.

3.5 The number of Credits available to you in any period of Subscription shall be determined by the package you choose. If you use all your Credits within a period of Subscription, you have the option to either: (i) upgrade your package in order to access further Credits, or (ii) wait until the next period of Subscription for a new installment of Credits. For the avoidance of doubt, unused Credits in a period of Subscription shall not roll to the next Subscription period.

4 License

4.1 In consideration of the payment of the Subscription Fees, we hereby grant to you a non-exclusive non-transferable license to use the Software for the purposes of receiving the Services for the duration of your Subscription. This license shall be immediately revoked on expiry or termination of your Subscription howsoever caused.

5 Data Protection

5.1 Response IQ and you shall comply with our respective obligations in respect of data protection as set out in the Schedule (Data Protection Provisions) to these Terms.

6 Our Obligations

6.1 We confirm that the Services will be performed with reasonable skill and care.

6.2 We confirm that we have and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under these Terms.

6.3 We do not warrant that the Services will be uninterrupted or error-free or that the Services will meet your expectations.

6.4 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 and the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7 Your Obligations

7.1 You warrant that you will:

a) provide us with all necessary co-operation and information in relation to these Terms;

b) comply with all applicable laws and regulations with respect to its activities under these Terms;

c) carry out all other obligations set out in these Terms in a timely and efficient manner. In the event of any delays in the provision of such assistance as agreed by the Parties, we may have to adjust any agreed timetable or delivery schedule as reasonably necessary;

d) obtain and shall maintain all necessary licenses, consents, and permissions necessary to perform your obligations under these Terms; and

e) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data.

7.2 You warrant that you have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

7.3 You agree that you shall not access, store, distribute or transmit any Viruses, or any material during the course of your Subscription 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, color, religious belief, sexual orientation, disability, or any other illegal activity; or

f) causes damage or injury to any person or property,

and we reserve the right, without liability to you, to disable your access to the Services and the Software if you store, processes, use or in any other way have any involvement with any material that breaches the provisions of this Clause.

7.4 You shall not:

a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

c) access all or any part of the Services or Software in order to build a product or service which competes with the Services or Software; or

d) use the Services or Software to provide services to third parties; or

e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third party except the Authorised Users, or

f) attempt to obtain, or assist third parties in obtaining, access to the Services or Software other than as provided under this Clause.

7.5 You shall prevent unauthorized access to the Software, including without limitation by protecting your passwords and other log-in information. You shall notify us immediately of any known or suspected unauthorized use of Software or breach of security and you shall use your best endeavors to mitigate the risk of said breach.

7.5 You shall prevent unauthorized access to the Software, including without limitation by protecting your passwords and other log-in information. You shall notify us immediately of any known or suspected unauthorized use of Software or breach of security and you shall use your best endeavors to mitigate the risk of said breach.

8 Proprietary Rights

8.1 You acknowledge and agree that Response IQ and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, these Terms do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Software.

8.2 We confirm that we have all the rights in relation to the Services and Software that are necessary to grant all the rights under, and in accordance with, the conditions of these Terms.

8.3 We acknowledge and agree that you shall own all rights, title and interest in and to the Client Data. We shall only use the Client Data in accordance with the conditions of these Terms.

9 Confidentiality

9.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under these Terms. Confidential Information shall not include information that:

a) is or becomes publicly known other than through any act or omission of the receiving Party;

b) was in the other Party’s lawful possession before the disclosure;

c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;

d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or

e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2 Each Party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the performance of these Terms.

9.3 This Clause 9 shall survive expiry or termination of the Subscription.

10 Indemnity

10.1 You shall defend, indemnify and hold harmless Response IQ against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:

a) any breach of your obligations under Clause 7 above;

b) your use of the Services or Software in violation of these Terms; or

c) any End Users’ use of the Services or Software in violation of these Terms.

10.2 This Clause 10 shall survive expiry or termination of the Subscription.

11 Limitation of Liability

11.1 Response IQ’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of under these Terms shall be limited to the total Subscription Fees paid by you in the twelve (12) month period immediately preceding the date on which the loss arose.

11.2 In no event shall Response IQ, its employees, agents and sub-contractors be liable to you for any losses arising where:

a) a modification is made to the Services or the Software or Documentation by anyone other than us; or

b) your use of the Services or the Software is conducted in a manner contrary to the instructions given to you by us; or

c) you continue to use the Services or Software after notice of an alleged or actual infringement from us or any appropriate authority.

11.3 Except as expressly and specifically provided in these Terms:

a) you assume sole responsibility for results obtained from your use of the Services and the Software, and for conclusions drawn from such use. Response IQ makes no warranty that the Software or Services will meet your requirements. Response IQ shall have no liability for any losses caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your request;

b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms and we make no representations or warranties of any kind, whether express or implied, as to the operation of the Services, the Software or the Website including, but not limited to, any warranties of merchantability, fitness for purpose, and accuracy; and

c) the Services and the Software are provided to you on an “as is” and “as available” basis and Response IQ makes no warranty that the Software and Services will be uninterrupted, timely, secure, or error-free.

11.4 Response IQ shall not be liable to you whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.

11.5 No advice or information, whether oral or written, obtained by you from us through the Software, the Website or the Services or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.

12 Termination

12.1 You or we may terminate your Subscription:

a) with immediate effect by written notice if the other Party commits an irremediable material breach of these Terms;

b) by providing written notice if the other Party is in material breach of these Terms and fails to cure that breach within thirty (30) days after receipt of such written notice; or

c) the other Party ceases its business operations, goes into voluntary insolvency or becomes subject to insolvency proceedings.

12.2 If your Subscription terminates:

a) the license to use the Software set out in Clause 4.1 and all other rights granted by Response IQ you pursuant to these Terms shall cease immediately;

b) for a period of thirty (30) days after the termination date, we may provide you with access to your account at then-current fees so that you may export the Client Data;

c) thirty (30) days after the termination date, we may delete any Client Data relating to your account without any liability to you; and

d) each Party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other Party.

12.3 Clauses 5, 7.3, 7.4, 7.5, 8, 9, 10, 11, 13, 14 and the provisions of the Schedule shall survive expiration or termination of these Terms.

13 Dispute Resolution

13.1 We want to address any concerns you may have without resorting to a formal legal case. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Clause 14 of these Terms and a subsequent meeting between the Parties. If a dispute is not resolved within thirty (30) days of notice, Response IQ or you shall follow the dispute resolution process below.

13.2 If the dispute or difference is not resolved as a result of the proposed meeting, either Party may (within 10 (ten) Working Days of the last meeting between the Parties), before resorting to litigation, propose to the other in writing that the dispute be settled by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure (the “Model Procedure”). To initiate a mediation, a Party must give notice in writing (an “ADR Notice”) to the other Party requesting a mediation in accordance with the Model Procedure. A copy of the ADR Notice should be sent to CEDR. The Parties shall seek to agree the mediator by mutual discussions, but if after seven (7) days of the receipt of the ADR Notice no mediator can be agreed upon, the Parties agree to contact CEDR to select a suitable mediator.

13.3 Either Party may bring a claim in the courts of England and Wales solely for injunctive relief to stop unauthorized use or abuse of the Services, Software or Client Data or infringement of intellectual property rights without first engaging in the informal dispute notice process described above.

14 General

14.1 Neither Party shall have liability to the other Party under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, 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 application or sub-contractors, provided that the other Party is notified of such an event and its expected duration.

14.2 No delay, neglect or forbearance on the part of either Party in enforcing any condition of these Terms shall be or be deemed to be a waiver of, or otherwise prejudice, any right of that Party under these Terms.

14.3 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

14.4 You shall not, without the prior written consent of Response IQ, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms. Response IQ may assign all or any of its rights or obligations under these Terms, but it shall remain responsible for the performance of any obligations to you following such assignment.

14.5 Nothing in these Terms is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party 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).

14.6 These Terms do not confer any rights on any person or party other than the Parties to these terms and, where applicable, their successors and permitted assigns.

14.7 Any notice required to be given under these Terms shall be in writing and shall be delivered by hand, sent via first class registered delivery or e-mail to the other Party. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A notice delivered by first class registered delivery shall be deemed to have been received two (2) days after it as sent. A notice delivered by email shall be deemed delivered on the date it was sent.

14.8 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales.

14.9 The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).

14.10 Any modifications or amendments these Terms shall be effective only when made in writing and signed by both Parties.

14.11 These Terms, and any documents referred to in them, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

14.12 You hereby agree that Response IQ may use your trademarks on the Website solely for the purposes of publicising the relationship between the Parties.

14.13 Each of the Parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.

Schedule – Data Protection Provisions

1 The Parties agree that, for the Protected Data, you shall be the Data Controller and we shall be the Data Processor.You acknowledge and agree that you are responsible for obtaining consent from Customers and any visitors to your website to process their Protected Data. You hereby instruct Response IQ as a Data Processor to process this Protected Data on behalf of you for the provision of the Services.You further acknowledge and agree that you are responsible for obtaining consent to record any calls you make to Customers and therefore process the Protected Data provided to you on such calls. You hereby instruct Response IQ as a Data Processor to process this Protected Data on your behalf for the provision of the Services. You acknowledge that the call recording functionality can be switched off or not shared with ResponseIQ via options available in the Dashboard.

2 We shall process Protected Data in compliance with the obligations of Data Processors under Data Protection Laws in respect of the performance of its obligations under these Terms.You shall comply with all Data Protection Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under these Terms, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Laws.You warrant, represent and undertake, that:

a) all data sourced by you for use in connection with the Services shall comply in all respects with Data Protection Laws;

b) all instructions given by you to us in respect of Personal Data shall at all times be in accordance with Data Protection Laws.

3 Insofar as we process Protected Data on behalf of you, we:

a) unless required to do otherwise by Applicable Law, shall process the Protected Data only on and in accordance with your documented instructions (the “Processing Instructions”);

b) if Applicable Law requires us to process Protected Data other than in accordance with the Processing Instructions, we shall notify you of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and

c) from the GDPR Date, shall promptly inform you if Response IQ becomes aware of a Processing Instruction that, in our opinion, infringes Data Protection Laws.

4 We shall implement and maintain, at our cost and expense, reasonable technical and organizational measures in relation to the processing and security of Protected Data by us.

5 We shall not engage any Sub-Processor for carrying out any processing activities in respect of the Protected Data without your written authorization relating to that specific Sub-Processor.

6 We shall refer all Data Subject Requests it receives to you. We shall provide reasonable assistance to you with such Data Subject Requests.From the GDPR Date, we shall provide such reasonable assistance as you may reasonably require to you in ensuring compliance with your obligations under Data Protection Laws, provided you shall pay our reasonable expenses for providing the assistance in this Clause6.

7 You agree that we may transfer Protected Data to countries outside the European Economic Area (the “EEA”) or to any International Organisation(s), provided all such transfers shall (to the extent required under Data Protection Laws) be effected by way of Appropriate Safeguards and in accordance with Data Protection Laws.

8 We shall maintain written records of all categories of processing activities carried out on your behalf in accordance with Data Protection Laws.

9 In respect of any Personal Data Breach involving Protected Data, we shall, without undue delay:

a) notify you of the Personal Data Breach; and

b) provide you with details of the Personal Data Breach.

10 We shall, at your written request, either delete or return all the Protected Data to you in such form as you reasonably request within a reasonable time after the earlier of:

a) the end of your Subscription; or

b) once processing by us of any Protected Data is no longer required for the purpose of the performance of our relevant obligations under these Terms,

and delete existing copies (unless storage of any data is required by Applicable Law and, if so, we shall inform you of any such requirement).

11 Each Party (the “Indemnifying Party”) shall indemnify and keep indemnified the other Party (the “Indemnified Party”) in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, the Indemnified Party arising from or in connection with the Indemnifying Party’s non-compliance with Data Protection Laws.

12 Clauses 1 to 9 (inclusive) of this Schedule shall survive termination (for any reason) or expiry of your Subscription and continue until twelve (12) months following the earlier of the termination or expiry of your Subscription. Clauses 10 to 13 (inclusive) of this Schedule shall survive termination (for any reason) or expiry of your Subscription and continue indefinitely.

13 The following definitions shall apply to the provisions of this Schedule.

Applicable Law

means as applicable and binding on the Parties and/or the Services under these Terms:

(a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the services under these Terms are provided to or in respect of;

(b) the common law and laws of equity as applicable to the Parties from time to time;

(c) any binding court order, judgment or decree; or

(d) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over a Party or any of that Party’s assets, resources or business;

Appropriate Safeguards

means such legally enforceable mechanism(s) for transfers of Personal Data as may be permitted under Data Protection Laws from time to time;

(a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the services under these Terms are provided to or in respect of;

Data Controller, Data Processor, Data Subject, Personal Data, processing

shall all have the meaning given to that term in Data Protection Laws;

Data Protection Laws

means as applicable and binding on the Parties and/or the services under these Terms:

(a) in the United Kingdom:

(i) the Data Protection Act 1998 and any laws or regulations implementing Directive 95/46/EC (the “Data Protection Directive”); and/or

(ii) the GDPR, and/or any corresponding or equivalent national laws or regulations;

(b) in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and

(c) any Applicable Laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time;

Data Protection Losses

means all liabilities, including all:

(a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and

(b) to the extent permitted by Applicable Law:

(i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;

(ii) compensation which is ordered by a Supervisory Authority to be paid to a Data Subject; and

(iii) the reasonable costs of compliance with investigations by a Supervisory Authority;

Data Subject Request

means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;

GDPR

means the General Data Protection Regulation (EU) 2016/679;

GDPR Date

means from when the GDPR applies on 25 May 2018;

International Organisation

means an organization and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries;

Personal Data Breach

means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Protected Data;

Protected Data

means Personal Data received from or on behalf of you in connection with the performance of our obligations under these Terms;

Sub-Processor

means another Data Processor engaged by us for carrying out processing activities in respect of the Protected Data on your behalf; and

Supervisory Authority

means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.