Terms and Conditions

STANDARD TERMS AND CONDITIONS

FOR USE OF

ZAPPISTORE WEBSITE PRODUCTS

These terms and conditions, entered into by the parties shall govern the relationship between the Client and ZappiStore Limited (“Zappi”) in relation to any purchase of any products on the Zappi platform(s).

1                INTERPRETATION

1.1             Definitions:

(a)             Affiliates means marketing agencies, Client Group Companies, joint venture affiliated companies, partners and other suppliers of the Client;

(b)             Agreement means these terms and conditions, together with all Statements of Work entered into by the parties;

(c)              Authorised Client Personnel means those employees, agents of the Client and Affiliates who are authorised by the Client to use the Services;

(d)             Client means the entity on behalf of which the individual(s) is generating Reports via the Zappi Platform(s);

(e)             Client Group Company means any subsidiary or holding company of the Client from time to time, and any subsidiary from time to time of a holding company of the Client, with holding company and subsidiary having the definition given in section 1159 of the Companies Act 2006;

(f)              Client Materials means the adverts, concepts, products, packaging, messages, straplines and any other data, information and materials supplied by or on behalf of the Client or Affiliates for use in connection with the Services;

(g)             Data Privacy Laws means the following as amended, extended or re-enacted from time to time;

(i)              EC Directive 1995/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

(ii)             EC Directive 2002/58/EC on Privacy and Electronic Communications;

(iii)            GDPR (when in force);

(iv)            all local laws or regulations implementing or supplementing the EU legislation mentioned in (i) to (iii) above;

(v)             all codes of practice and guidance issued by national regulators relating to the laws, regulations and EU legislation mentioned in (i) to (iv) above.

(h)             Effective Date means the date the first Services are provided;

(i)              Fees means the fees payable by the Client in respect of the Services and Reports which are set out on the Zappi Platform(s) (for Reports purchased via the Zappi Platform(s));

(j)              Force Majeure means acts, events, omissions or accidents beyond a party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Zappi or any other party); failure of a utility service or transport or telecommunications network; act of God, war, terrorism, or threat of war or terrorism; riot, civil commotion, malicious damage; compliance with any law or governmental order, rule, regulation or direction; accident, breakdown of plant or machinery; fire, flood or storm;

(k)             GDPR means the General Data Protection Regulation (EU) 2016/679 and references in the Agreement to “controller”, “processor”, “processing”, “data subject” and “personal data” shall have the same meaning as defined in the GDPR;

(l)              Intellectual Property Rights means patents, copyright, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

(m)            Losses means all losses, costs, claims, damages, liabilities, penalties, expenses (including reasonable legal expenses);

(n)             Methodologies means all processes, tools, software, code, methodologies, research methods, algorithms, models, approaches, and know how, whether in existence prior to the date on which they are used as part of the Services, or which are created after by or on behalf of Zappi and which are intended to be used across multiple clients and the Zappi business;

(o)             Reports means the reports to be delivered to the Client as part of the Services, which are purchased and generated by the Client directly via the Zappi Platform(s), and all materials, research, deliverables, output, data and information that is made available to, or generated by, the Client and Affiliates via the Zappi Platform(s) or as part of the Services;

(p)             Services means the provision of Reports.

(q)             Term means the duration of the Agreement;

(r)              Zappi Platform(s) means the Zappi platform known as ZappiStore and any other website or platform made available to the Client by Zappi.

1.2             A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.3             A reference to “includes” or any similar expression shall mean including without limitation.

1.4             A reference to “writing” or “written” includes email but not fax.

1.5             Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

2                PROVISION OF THE REPORTS AND SERVICES

2.1             The Client may generate and purchase Reports via the Zappi Platform(s) or otherwise in accordance with this Agreement.

2.2             The individual(s) generating Reports by way of the Zappi Platform(s) confirm(s) that it has the authority and capacity to act on behalf of the Client.

2.3             Zappi will provide the Services in accordance with the terms of the Agreement.

2.4             Zappi shall use reasonable endeavours to make the Services available via the Zappi Platform(s) 24 hours a day, seven days a week, except for periods of maintenance. Zappi will endeavour to keep any downtime as a result of maintenance to a minimum.

2.5             Zappi will, as part of the Services, and at no additional cost to the Client, provide the Client with Zappi’s standard technical support service which includes the provision of minor bug-fixes and log-in/access problems but does not include training, support or one to one help with using the Services.

2.6             Zappi may add or remove other features and functions from the Zappi Platform(s) from time to time at its discretion.

3                USE OF THE SERVICES BY THIRD PARTIES AND AFFILIATES

3.1             The Client shall procure compliance with the terms of the Agreement by all Affiliates and, in the event that any Affiliate breaches the Agreement, the Client hereby indemnifies Zappi against any and all Losses suffered as a result of such a breach.

4                USE OF THE REPORTS

4.1             Subject to the Client paying the Fees and complying with the terms of the Agreement, Zappi hereby grants to the Client a non-exclusive right to use the Reports and to permit Authorised Client Personnel and Affiliates  to use the Reports during the course of its normal business activities, provided that the Client does not remove (and the Client shall procure that the Authorised Client Personnel and Affiliates do not remove) any watermarks, branding  of Zappi or other copyright notices from the Reports.

4.2             Subject to clause 4.3 the Client shall not remove any Zappi branding incorporated into the Reports and agrees to use any accreditation wording requested by Zappi when referring to the Reports in public.

4.3             Any public use of the Reports or any use of Zappi’s name, including references to the same in the Client’s marketing material, shall be subject to the prior written approval of Zappi, such approval not to be unreasonably withheld or delayed.

4.4             The Client shall ensure that:

(a)             all Authorised Client Personnel keep secure passwords for their use of the Zappi Platform(s) and access to the Reports;

(b)             passwords for access to the Zappi Platform(s) are changed regularly, including at any point when any Authorised Client Personnel cease to be employed or otherwise engaged with the Client or Affiliate; and

(c)              the Client Materials (i) are not unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) do not encourage illegal or socially offensive activity; (iii) do not depict sexually explicit images; (iv) do not discriminate based on race, gender, colour, religious belief, sexual orientation, disability; and (v) do not cause damage or injury to any person or property or infringe any third party rights (including any Intellectual Property Rights).

4.5             The Client shall not (and will procure that Affiliates and Authorised Client Personnel do not):

(a)             except as permitted by the licence granted at clause 4.1, copy, modify, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Reports, in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to either machine or human-perceivable form all or any part of the Zappi Platform(s) or

(b)             use or access all or any part of the Reports or Zappi Platform(s) in order to build a product or service which Zappi considers (in its sole discretion) to compete in any way with the Reports, Services or Zappi Platform(s); or

(c)              other than expressly set out in the Agreement, commercially exploit the Reports or Zappi Platform(s) including any derivatives of the same, or license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make available the Reports or Zappi Platform(s) to any third party.

4.6             The Client shall:

(a)             use all reasonable endeavours to prevent any unauthorised access (outside of the Affiliates or Authorised Client Personnel) to, or use of, the Reports or Zappi Platform and, in the event of any such unauthorised access or use, promptly notify Zappi;

(b)             provide Zappi with all necessary co-operation in relation to the Agreement and with such Client Materials and other information as may be required in order for Zappi to provide the Services;

(c)              comply with all applicable laws and regulations with respect to its activities under and in connection with the Agreement;

(d)             give approvals and provide all Client Materials in a timely and efficient manner, and Zappi shall not be liable for any delays to any agreed timetable to the extent that such delays are caused by an act of omission by the Client or its Affiliates;

(e)             ensure that its network and systems comply with the relevant specifications provided by Zappi from time to time; and

(f)              be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Zappi Platform(s). If the Client has not ordered any Reports (via the Zappi Platform) in a period of 12 months, Zappi shall have no obligation to maintain the Client Branded Platform, or the Client’s log in details or account.

5                CLIENT MATERIALS

5.1             The Client shall own all right, title and interest in and to all Client Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Materials.

5.2             The Client warrants to Zappi that it has all necessary rights to provide the Client Materials to Zappi and that the use by Zappi of the Client Materials in connection with the Services will not infringe the Intellectual Property Rights or any other rights of any third party.

5.3             The Client hereby grants to Zappi a non-exclusive, non-transferable right to use the Client Materials for the purpose of enabling Zappi to provide the Services to the Client in accordance with the Agreement.

5.4             The Client hereby indemnifies Zappi against any and all Losses arising out of and in connection with the use of the Client Materials in connection with the Services.

5.5             The Client hereby grants permission to Zappi to:

(a)                      include the Client’s name in its list of customers on its website or in any other promotional materials; or

(b)                      refer to the Client, orally or in writing, as a customer of the Services for promotional, marketing or financial reporting purposes.

6                FEES AND PAYMENT

6.1            Reports bought by credit/debit card

6.2             Where Reports are ordered via the Zappi Platform(s), the Fees shall be specified on the Zappi Platforms and may be paid by the Client by credit/debit card. All card payments are subject to authorisation by the credit/debit card holder’s card issuer. Zappi will take full payment immediately for all Reports ordered via the Zappi Platform and will not be liable for providing Reports unless it is in receipt of the relevant Fees. During the checkout process, the Client will be asked to enter payment details. Zappi engages a PCI DSS certified third party to process credit/debit card payments and Zappi does not collect or retain credit/debit card information. By completing the payment details the individual acting on behalf of the Client confirms Client’s right to use the credit or debit card. All fields indicated as compulsory must be completed. Zappi may collect and store Client’s information using a secure payment mechanism

7                PROPRIETARY RIGHTS

7.1             The Client acknowledges and agrees that Zappi and/or its licensors own all Intellectual Property Rights and all data in the Services, Reports, Zappi Platform and Methodologies (excluding any Client Materials). Except as expressly stated, this Agreement does not grant the Client any rights to the Intellectual Property Rights in, or any other rights or licences in respect of, the Services, Zappi Platform, Methodologies or the Reports.

7.2             Zappi confirms that it has all the rights in relation to the Services, Reports, Methodologies and the Zappi Platform(s) that are necessary to grant all the rights it purports to grant to the Client in accordance with the terms of the Agreement.

8                MARKET RESEARCH RESPONDENTS

8.1             The Client acknowledges that the creation of the Reports will involve individuals responding to market research questions and stimuli and otherwise providing various services to Zappi for the benefit of Zappi’s clients (“Respondents”). The Client acknowledges that, given the nature of the Services, Zappi shall not be liable for the acts of such Respondents and such Respondents shall not be considered sub-contractors of Zappi in connection with this Agreement.

8.2             The parties do not anticipate that Zappi will, as a part of providing the Services, share any personal data relating to the Respondents but, to the extent Zappi does share personal data relating to the Respondents, the following provisions of this clause 8 shall apply:

(a)             The parties acknowledge and agree that the provisions of Article 28(3)(a)-(h) of the GDPR are incorporated into this Agreement, with any necessary changes to give full effect to such provisions, whether or not the GDPR is then in force;

(b)             Each party shall comply with the obligations imposed on it by applicable Data Privacy Laws with regard to any personal data processed by it in connection with Services.

8.3             Where, by operation of this clause 8 Zappi is obliged to provide assistance to the Client, or to third parties at the request of the Client. Such assistance shall be provided at the sole cost and expense of the Client, save where such assistance directly arises from Zappi’s breach of its obligations under this Agreement, in which event the costs of such assistance shall be borne by Zappi.

9                CONFIDENTIALITY

9.1             Each party undertakes that it shall not (whether during or after termination of the Agreement) disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 9.2.

9.2             Each party may disclose the other party’s confidential information:

(a)             to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and

(b)             as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3             No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

9.4             The Client acknowledges that the Client Materials which are input by or on behalf of the Client and Authorised Client Personnel will be made available to Respondents to enable Zappi to perform the Services.

9.5             The Client acknowledges and agrees that Zappi shall be entitled to retain and use, both during and after the term of the Agreement, any information and data received or generated from the Reports and use of the Services. Such information and data may be used for such purposes as Zappi may choose including for producing reports, trends analysis, forecasting, monitoring, and analysis and operational purposes. Zappi shall ensure that any such use will not identify or refer to the Client by name and will be anonymised. For the avoidance of doubt, the Client acknowledges and agrees that Zappi will own any information and data retained under this clause 9.5.

10             LIMITATION OF LIABILITY

10.1          Nothing in the Agreement excludes the liability of either party for death or personal injury caused by a party’s negligence or for fraud or fraudulent misrepresentation.

10.2          Subject to clause 10.1, Zappi’s aggregate liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) arising in respect of the Services, Reports, Zappi Platform(s) and/or in connection with this Agreement shall be limited to the level of the Fees paid or payable by the Client in the 12-month period preceding the date of the claim.

10.3          Except as expressly and specifically provided in the Agreement:

(a)             the Client assumes sole responsibility for results obtained from the use of the Reports and Zappi Platform(s), and for all conclusions drawn from the Reports. The Client acknowledges that Zappi is not responsible for any Losses suffered by the Client resulting from any decisions which the Client takes or marketing campaigns that the Client generates as a result of using the Reports and the Client agrees that it uses the Reports at its own risk in these respects;

(b)             Zappi shall have no liability for any Losses caused by errors or omissions in any Client Materials or any other information, instructions or scripts provided to Zappi by or on behalf of the Client in connection with the Services;

(c)              the Client understands that Zappi is an aggregator and provider of data and information (including opinions) for general information purposes only and does not provide marketing, planning, commercial, financial, tax and accounting, legal or other professional advice;

(d)             Zappi does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, Reports, Zappi Platform(s) and/or the information obtained by the Client through the Services will be delivered free of any inaccuracies, omissions or errors or will meet the Client’s specific requirements;

(e)             Zappi is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communication networks and facilities, including the internet, and the Client acknowledges that the Services and Zappi Platform(s) may be subject to limitations, delays and other problems inherent in the use of such communication facilities;

(f)              Zappi is not responsible for any problems, conditions, delays, delivery failures or any other loss or damage arising from or relating to (a) the Client’s network connections or telecommunications links; or (b) caused internet failure; and

(g)             the Services, Reports and Zappi Platform(s) are provided to the Client on an “AS IS” basis.

10.4          All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including without limitation warranties or other terms as to suitability, merchantability, satisfactory quality and fitness for a particular purpose, are to the fullest extent permitted by applicable law, excluded from the Agreement.

10.5          Subject to clause 10.1, Zappi shall not be liable 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 the Agreement.

11             TERM AND TERMINATION

11.1          This Agreement shall commence on the Effective Date and shall continue thereafter unless otherwise terminated by either party in accordance with the terms of clause 11.2 or on not less than three months’ notice in writing.

11.2          Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a)             the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than thirty days after being notified in writing to make such payment;

(b)             the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;

(c)              the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(d)             the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e)             a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f)              an application is made to court, or an order is made for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party; or

(g)             the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

11.3          On termination of the Agreement or expiry of the Services for any reason:

(a)             the Client shall cease all use of the Zappi Platform(s) in accordance with this clause 11;

(b)             save where the Agreement is terminated by Zappi in accordance with clause 11.2, Zappi will enable the Client to access the Zappi Platform(s) for no less than 45 days after the date of termination. Following expiry of this 45-day period (or immediately where the Agreement is terminated by Zappi in accordance with clause 11.2) Zappi shall no longer be obligated to maintain the Client’s account or log in details and shall be entitled to destroy or otherwise dispose of any Reports and Client Materials in its possession; and

(c)              any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry shall not be affected or prejudiced.

11.4          The following clauses shall survive termination:  Clause 4 (Use of the Reports); Clause 7 (Proprietary Rights); Clause 8 (Market Research Respondents and Data Protection); Clause 9 (Confidentiality); Clause 10 (Limitation of Liability); Clause 11 (Termination); Clause 13 (General).

12             FORCE MAJEURE

12.1          Zappi shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by an act of Force Majeure provided that the Client is notified of such an event and its expected duration.

13             GENERAL

13.1          Variation

Zappi may vary the terms of this Agreement by notice in writing to the Client from time to time, and the Client’s continued ordering of Reports (via the Zappi Platform(s)) shall constitute acceptance of such revised terms.

13.2          Waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.3          Rights and Remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

13.4          Severance

(a)             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.

(b)             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 the commercial intention of the parties.

13.5          Entire Agreement

(a)             The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

(b)             Each of the parties acknowledges and agrees that in entering into the Agreement 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 the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

13.6          Assignment

The Client shall not, without the prior written consent of Zappi, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

13.7          No Partnership, Agency or Exclusivity

(a)             Nothing in the Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as an 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).

(b)             Nothing in the Agreement shall prevent Zappi from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.

13.8          Third Party Rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.9          Notices

(a)             Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or email to the other party at its address or email address set out in clause 13.9(b), or such other address or email address as may have been notified by that party for such purposes.

(b)             Notices to Zappi shall be sent to:

For the attention of: Kate Anavitate

Address: ZappiStore Limited, Bedford House 125-133 Camden High Street London, NW1 7JR.

Email address: kate.anavitate@zappistore.com

(c)              Notices to the Client shall be sent to the Client’s registered address.

(d)             A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at 9am on the first business day following sending.

13.10        Governing Law and Jurisdiction

(a)             The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

(b)             Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).