TERMS AND CONDITIONS AGREEMENT

Effective Date: 5th March 2019

The following WhatsChanged Terms and Conditions Agreement (“Agreement”) governs your use of the software and services provided by WhatsChanged Limited (“WhatsChanged”). This is a legal agreement between you and WhatsChanged. By registering your use of the Service (as defined below), you are accepting to be bound to the terms of this Agreement. If you do not agree to all of the terms in this Agreement, do not use or access the software.

1. DEFINTIONS

a) “Administrator or Company Administrator” shall mean a Subscriber with authority to designate additional Authorised Users and/or Administrators.

b) “Agreement” shall mean this entire Agreement and Service Agreement.

c) “Authorised User” shall mean an individual subscriber of the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Service who have been added, by the Administrator, to the account as users.

d) “Confidential Information” shall mean the Content (as defined in section 1(e)) and any information, technical data, or know-how considered proprietary or confidential WhatsChanged including, but not limited to, WhatsChanged’s research, services, inventions, processes, specifications, designs, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, business and marketing plans or strategies, financial information, and business opportunities disclosed by either partly before or after the Effective date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.

e) “Content” shall mean any information you upload to the Service and any information provided by you to WhatsChanged in connection with the Service, including, without limitation, information about your Authorised Users.

f) “Originating Subscriber” shall mean the Subscriber who initiated the Services offered by WhatsChanged and is assumed by WhatsChanged to have the sole authority to administer the subscription.

g) “Service” shall mean any software of services provided by WhatsChanged.

h) “Subscriber” shall refer to the purchaser of the Services provided by WhatsChanged and shall also include any present or former agent, representative, independent contractor, employee and any entity or person who had authority to act on your behalf.

i) “Security Emergency” shall mean a violation by Subscriber of this Agreement that (a) could disrupt (i) WhatsChanged’s provision of the Service; (ii) the business of other subscribers to the Service; or (iii) the network or servers used to provide the Service; or (b) provides unauthorised third party access to the Service.

2. LIMITED LICENSE AND USE OF THE SERVICE

2.1. Subscriber is granted non-exclusive and limited access to the Service.

2.2. WhatsChanged does not review or pre-screen the contacts of electronic data uploaded to the Service (“Content”) by Authorised Users.

2.3. Authorised Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the web-app or mobile application interface, product functionality, other programming elements or any visual design elements without the written permission from WhatsChanged.

2.4. Authorised Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, WhatsChanged, or any other software or service provided by WhatsChanged without the written consent of WhatsChanged.

2.5. Authorised Users agree that they will not knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.

2.6. Authorised Users agree that they will not knowingly use the Service to upload, post, host or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replication computer programs “Worms” or any code of a destructive or malicious nature.

2.7. Except for the non-exclusive and limited access granted pursuant to this Agreement, Subscriber acknowledges and agrees that all ownership license, intellectual property and other rights and interests in and to the Service shall remain solely with WhatsChanged.

2.8. Authorised Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). WhatsChanged reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to the Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.

2.9. WhatsChanged reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

2.10. WhatsChanged reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades. WhatsChanged will notify you in advance by way of notification within the Service email or other notification deemed appropriate by WhatsChanged. Further, WhatsChanged shall endeavour to confine planned operational suspension with a best effort to minimise disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of temporary suspension, WhatsChanged will use the same notification methods listed in the this section to provide updates as to the nature and duration of any temporary suspension and nature/description of any chances to the system.

2.11. Subscriber grants to WhatsChanged a non-exclusive, royalty free right during Subscriber’s use of the Service, to use Confidential Information for the purpose of performing WhatsChanged’s obligations under the Agreement in accordance with the terms of the Agreement. Such right shall include permissions for WhatsChanged to generate and publish aggregate, reports on system usage and Contents trends and type.

3. ACCESS TO THE SERVICE

3.1. Subscriber is only permitted to access and use the Service if he/she is an Authorised User. Authorised Users are required to provide their full name, a valid email address, and any other information reasonably requested by the Service.

3.2. The initial Administrator shall be the Secondary Contact with authority to administer the subscription and designate additional Authorised Users and/or Administrators. Each subscription may designate multiple Authorised Users as Administrators. Any Administrator shall be deemed to have the authority to manage the subscription and any Authorised Users. The Administrator will delete an active Authorised User if the Administrator wishes to terminate access to the Service for the individual.

3.3. Administrators are responsible for all use of the Service by Authorised Users on the list of the active Authorised Users associated with their subscription to the Service.

3.4. As between WhatsChanged and the Subscriber, any Content uploaded or posted to the Service remains the property of the Subscriber. Upon Cancellation of Termination of Service, WhatsChanged shall only be responsible for the return of Content directly to the Administrator or a designated Authorised User in the event that the Administrator is unable to be reached.

3.5. All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

3.6. Authorised Third Party Providers or other authorised integrators may be permitted to access and use the Service using an integration with a third-party company subject to the following conditions:
a) any use of the Service using an integration with a third-party company including the use of an integration through a third-party product that accesses and use the Service, is governed by these Terms of Service;
b) WhatsChanged shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use data or other intangible losses (even if WhatsChanged has been advised of the possibility of such damages), resulting from any use of an integration or third-party products that access and use the Service via an integration;
c) Excessive use of the Service using an integration may result in temporary or permanent suspension of access to the Service via an integration. WhatsChanged, in its sole discretion, will determine excessive use of the Service via an integration, and will make a reasonable attempt to warn the Authorised User prior to suspension; and
d) WhatsChanged reserves the right at any time to modify or discontinue temporarily or permanently, access and use of the Service via an integration, with or without notice.

4. SECURITY AND ACCESS

4.1. WhatsChanged is responsible for providing a secure method of authentication and accessing its Service. WhatsChanged will provide mechanisms that:
a) allow for user password management
b) transmit passwords in a secure format; and

4.2. Subscriber will be responsible for protecting the security of details and passwords, or any other codes associated to the Service, and for the accuracy and adequacy of personal information provided to the Service.

4.3. Subscriber will implement policies and procedures to prevent unauthorised use of log in details and will promptly notify WhatsChanged upon suspicion that log in details has been lost, stolen, compromised or misused. Authorised Users will receive notification of 5 failed attempted log-ins.

4.4. At all times, WhatsChanged, and any third party vendors and hosting partners it utilises to provide the Service, will:
a) use information security best practices for transmitting and storing your Content, adhering to industry standards;
b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
c) ensure its host facilities maintain industry standards for security and privacy; and

4.5. WhatsChanged shall report to Subscriber, with all relevant details, any event that WhatsChanged reasonably believes represents unauthorised access to, disclosure of, use of, or damage to Content (a “Security Breach”). WhatsChanged shall make such report within a reasonable time after learning of the Security Breach.

4.6. In the event of a Security Breach, WhatsChanged shall cooperate with Subscriber to identify the cause of the breach and to identify any affected Content.

5. LEGAL COMPLIANCE

5.1. WhatsChanged reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.

6. PAYMENTS, REFUNDS AND SUBSCRIPTION CHARGES

6.1. Subscribers with paid subscriptions will receive a monthly invoice from WhatsChanged for the applicable fees. Payment terms are thirty (30) days from invoice date by direct debit.

6.2. You agree that in the event WhatsChanged does not receive the fees owed for the Services. Access to the Service will be paused until such time the payment is received. WhatsChanged may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by WhatsChanged in connection without such collection activity, including collection fees and legal costs.

6.3. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to instances involving the removal of a Subscriber.

6.4. All prices are subject to agreement between the Subscriber and WhatsChanged.

7. CANCELLATION AND TERMINATION

7.1. Administrators are solely responsible for cancelling subscriptions. An Administrator may cancel their subscription by providing a written request to [email protected] or by post to 66 The Transmitting Station, Great North Road, Brookmans Park, AL9 6NE. Cancellations shall not be accepted by any other means.

7.2. WhatsChanged in its sole discretion has the right to suspend or discontinue providing the Service to any Subscriber without notice for actions that are (a) in material violation of this Agreement, (b) create a Security Emergency, and (c) upon information of belief that a Subscriber or Authorised User is violating the law.

7.3. If (i) Authorised Users use the Service to materially violate this Agreement in a way that does not create a Security Emergency; (ii) WhatsChanged provides Subscriber with commercially reasonable notice of this violation; (iii) WhatsChanged uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to WhatsChanged’s reasonable satisfaction within thirty (30) days of such notice, then WhatsChanged reserves the right to suspend or terminate access to the Service.

8. LIMITATION OF LIABILITY

8.1. WhatsChanged shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Service provided to Subscriber by WhatsChanged.

8.2. Subscriber agrees that the liability of WhatsChanged arising out of any claim in any way connected with the Service will not exceed the total amount you have paid for the Service pursuant to the Agreement within the six month period before the date the claim arose. Subscriber further agrees that WhatsChanged is not and will not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including without limitation, legal fees) relating to this Agreement. These disclaimers apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, whether those damages are foreseeable and whether WhatsChanged has been advised of the possibility of those damages. Each provision of this Agreement that provides for limitation of liability, disclaimer of damages, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by WhatsChanged to Subscriber and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable from and independent of all other provisions of this agreement.

8.3. Subscriber will solely be responsible for any damage and/or loss of Content contained in Subscriber’s technology which occurs as a result of Subscriber’s electronic equipment and/or Subscriber’s computer system.

9. DISCLAIMER OF WARRANTIES

9.1. WhatsChanged hereby disclaims all warranties of any kind, whether express, implied or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights with respect to any services provided by WhatsChanged.

9.2. WhatsChanged makes no warranty that its services when provided to Subscriber in digital or electronic format will be compatible with Subscriber computer and/or other equipment, or these Services will be secure or error free. Nor does WhatsChanged make any warranty as to any results that may be obtained from the use of the Service.

9.3. WhatsChanged hereby disclaims all warranties of any kind related to Subscriber’s hardware or software beyond the warranties provided by the manufacturer of Subscriber’s hardware of software.

10. INDEMNIFICATION

10.1. Subscriber hereby agrees to indemnify and hold harmless WhatsChanged from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including legal fees, which arise from or relate to the following:
Authorised Users’ breach of any obligation stated in this Agreement, and Authorised Users’ negligent acts or omissions. WhatsChanged will provide prompt notice to Subscriber of any indemnifiable event or loss. Subscriber will undertake, at Subscriber’s own cost, the defence of any claim, suit or proceeding with counsel reasonably acceptable to WhatsChanged. WhatsChanged reserves to right to participate in the defence of the claim, suit or proceeding, at WhatsChanged’s expense, with counsel of WhatsChanged’s choosing.

11. MISCELLANEOUS

11.1. Subscriber acknowledges and agrees that WhatsChanged may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

11.2. WhatsChanged may provide the ability to integrate the Service with third party products and services that Subscriber may use at Subscriber’s option and risk. Access to and use of any third party products and services are subject to the separate terms and conditions required by the providers of the third party products and services. Subscriber agrees that WhatsChanged has no liability arising from Subscriber’s use of any integrations or arising from the third party products and services.

11.3. Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Service may be intercepted by third parties. Subscriber agrees to accept that risk and will not hold WhatsChanged liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only WhatsChanged, with strict business reasons, may transfer the Content and only to provide Subscriber with the service. WhatsChanged will make reasonable efforts to provide notice to Subscriber prior to such access and transfer.

11.4. The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

11.5. This Agreement in conjunction with the Service Agreement constitutes the entire agreement between Authorised Users and WhatsChanged and governs Authorised Users use of the Service, superseding any prior agreements between Authorised Users and WhatsChanged (including, but not limited to, any prior versions of this agreement).

11.6. WhatsChanged reserves the right to amend this Agreement. In the event of material changes to this Agreement, WhatsChanged will notify Subscribers, by reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber, Authorised User or Originating Subscriber after reasonable notice will be considered acceptance of any new terms.

11.7. Neither party may assign any of its rights or obligations hereunder whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.

12. GOVERNING LAW AND JURISDICTION

12.1. This agreement is governed by and shall be construed in accordance with English law and any dispute not settled amicably between the parties shall be submitted to the exclusive jurisdiction of the English court.

13. APPLICATION STORE

13.1. The download of the Service from Application Store may be subject to other terms as specified by the operator of the Application Store from which you downloaded the Service. Notwithstanding the foregoing or anything to the contrary in this Agreement, if you obtained the Service through an Application Store, the following terms are applicable and shall prevail in the event of any conflict with any other provisions of this Agreement.

13.2. The terms of this Agreement constitutes the only terms applicable to the licence of the Service to you. No terms between you and the Application Store shall apply to your use of the Service.

13.3. The Application Store has no authority to make any statements, representations, warranties or commitments on WhatsChanged’s behalf and any such statements, representations, warranties or commitments are null and void.

13.4. If specified in the applicable terms of service for an Application Store, certain information regarding your use of the Service may be collected by (or shared by WhatsChanged with) the applicable Application Store operator, and the Application Store operator’s use of such information will be subject to its own privacy policy.

13.5. This Agreement shall survive any termination of your agreement with the Application Store so long as WhatsChanged has received payment of any fees due for the Service.

14. APPLE SPECIFIC TERMS

14.1. If you downloaded the Service from Apple Inc.’s (“Apple”) Application Store, the following terms are part of this Agreement.

14.2. This Agreement is between you and WhatsChanged, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third party beneficiaries of this Agreement and will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.

14.3. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Service, and, as between Apple and WhatsChanged, any other claims, losses, liabilities, damages, costs or expenses attributable to a failure to conform to a warranty will be WhatsChanged’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Service.

14.4. As between WhatsChanged and Apple, WhatsChanged is solely responsible for the Service and for addressing any claims you or any third parties have about the Service or your possession or use of the Service including without limitation (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Service or your possession or use of the Service infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement or discharge of such claim.