Terms of Service

1. About these Terms

1.1.

These General Terms (“Terms”) set out the terms governing your access to and use of our services, including any products and/or software (“Services”), as well as any content, materials, services or communication provided in connection with the Services. Please read these Terms carefully before accessing or using our Services; by continuing to access and use them you agree to be bound by these Terms.

1.2.

You acknowledge and agree that our Services are intended solely for business customers, i.e. not for consumers. By signing up to use our Services you (the “Customer,” “Publisher” or “you”) agree to enter into a legally binding agreement (“Agreement”) with Wavebrook Analytics Ltd incorporated and registered in England and Wales with company number 14775951 whose registered office is at 128 City Road, London, United Kingdom, EC1V 2NX (“Wavebrook” or “we”).

1.3.

If you conclude an Agreement with Wavebrook in your capacity as the Publisher (instead of a Customer), then the references in these Terms to Customer shall be replaced by the definition of, and read as references to, Publisher, and the respective rights and obligation shall apply to you (as Publisher) accordingly.

1.4.

The Agreement consists of and incorporates any applicable service-specific terms (“Service Terms”) as well as the terms set out in the applicable order form (“Order”) or any schedule. If there is any conflict or ambiguity between the terms of (a) a schedule, (b) the Order, (c) the Service Terms, and (d) the General Terms, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

1.5.

If you (meaning, in this sentence, the natural person reading these Terms) enter into the Agreement with us, you do so as an authorised representative of your relevant legal entity (i.e. not in your personal capacity). These Terms do not modify or replace any other agreements you may have with Wavebrook concerning our Services or any other matters.

1.6.

We may amend these Terms at any time and will generally notify you 60 days before any amendments become effective. Please check these Terms from time to time to ensure that you agree with them. Your continued use of our Software will be deemed to be your acceptance of the most up-to-date version of these Terms. If we notify you of amendments to this Agreement that directly and substantially contradict the terms and conditions of the Agreement in effect when you initially accepted it, and if you find these modifications unacceptable, you may give us a 30 days’ notice to terminate the Agreement in accordance with clauses 11.3 and 11.5.4 of these Terms.

1.7.

If you have any questions about these Terms please email us at info@wavebrook.com.

2. Using our Services

2.1.

Generally, you need to conclude an Agreement with us to obtain access to our Services and provide us with your current, valid, and acceptable payment details. The Agreement shall commence on the Start Date which will be specified in the Order or otherwise confirmed in writing, and shall be effective until terminated.

2.2.

By accessing and using our Services, you acknowledge and accept responsibility for the selection of products to achieve your intended results and acknowledge that none of our Services have been developed to meet any of your specific requirements.

3. Our obligations

3.1.

We shall:

• 3.1.1. provide to you the agreed Services with reasonable care and skill; and
• 3.1.2. reasonably co-operate with you in relation to your use of our Services.

4. Your obligations

4.1.

You shall:

• 4.1.1. provide to us details we request from you, which we may reasonably need to provide Services to you;
• 4.1.2. ensure all information you give us is correct and up-to-date at all times, and notify us immediately of any changes to your contact, billing and payment details;
• 4.1.3. pay any Charges (as defined below) we charge you;
• 4.1.4. follow the instructions and directions we give you about using our Services and only use the Services in accordance with all applicable laws, rules and regulations;
• 4.1.5. make sure everyone under your supervision and who may use or do anything in relation to the Services also meets the requirements and obligations set out in the Agreement;
• 4.1.6. not do or omit to do anything which could damage our goodwill or bring our reputation into disrepute; and
• 4.1.7. ensure that you comply with all our current policies made available on our website from time to time, including but not limited to any acceptable use terms and any other standards, policies or guidelines which we may publish.

4.2.

You must not:

• 4.2.1. attempt to copy, reproduce, publish, transmit, broadcast, archive, download (other than through caching necessary for personal use), distribute, modify, display, perform, license, sublicense transfer, exchange, translate, create derivative works from, offer for sale, or use (except as explicitly authorised by these Terms) our Services unless you have obtained an express prior written permission from us, or the material in question has been intended and designated for further transmission or broadcasting;
• 4.2.2. use any robot, spider, scraper or other automated means to access any code or data within our Services;
• 4.2.3. decompile, reverse engineer or disassemble any of our Services (except as permitted by applicable law);
• 4.2.4. insert any code or product or manipulate the content of our Services in any way;
• 4.2.5. use any data mining, data gathering or extraction method on or in connection with the Services;
• 4.2.6. knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
• 4.2.7. modify, remove, or obscure any copyright, trademark, or other notices provided in relation to the Services;
• 4.2.8. use the Services in any way that is unlawful or fraudulent, or has any unlawful or fraudulent effect, or that infringes any third party's rights; and
• 4.2.9. transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Services. We may modify or delete any material that is considered defamatory, offensive or otherwise unlawful, or that infringes the rights of anyone else.

4.3.

You acknowledge and agree that you shall be responsible for all information technology, computer devices and third-party services required to allow you to access our Services (including your internet service provider and your electricity service provider), as well as for all obligations and charges you may owe (including but not limited to broadband or mobile data charges, and electricity charges).

5. Charges and payment

5.1.

In consideration for the provision of any of our Services under the terms of the Agreement, you shall pay us charges we agree in the relevant Order (the “Charges”). The way in which the Charges shall be calculated and invoiced shall be set out in the relevant Service Terms or Order.

5.2.

Each invoice shall be due by the due date specified on it, subject to cl. 5.8. If you fail to pay an invoice in full by the relevant due date, we may suspend our provision of Services until we receive the relevant payment from you, or notify you and maintain the provision of Services for another up to 30 days. You shall pay interest on any overdue amount at the rate of 4% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

6. Intellectual property rights

6.1.

In this section 6, “Intellectual Property Rights” means any patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and rights in domain names, rights in goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for, 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.

6.2.

You acknowledge that all Intellectual Property Rights in any of our Services (including any platforms, SDKs, and other materials developed by Wavebrook or any relevant third party in connection with this Agreement) shall belong to Wavebrook or any relevant third-party owners (as the case may be), and you shall have no rights in either of those other than the right to use them in accordance with the Agreement.

6.3.

Where a piece of software incorporates open-source software, the parties shall ensure (depending on their authorship status in relation to resulting software) that the terms of the relevant open-source licence are complied with.

7. Confidentiality

7.1.

Each party undertakes that it shall not at any time during the Agreement, and for a period of 12 calendar months after termination or expiry of the Agreement, disclose to any person any information concerning the Agreement (including information regarding any Charges of fees we agree to pay to you) or any confidential information (whether labelled or identified as such, or whether such information may be reasonably considered confidential or commercially sensitive given its circumstances and context) concerning the relevant Services, or the business, assets, affairs, affiliates, 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 7.2.

7.2.

Each party may disclose the other party's confidential information:

• 7.2.1. where required by law, court order or any governmental or regulatory body;
• 7.2.2. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
• 7.2.3. where the information has become generally available to the public (other than as a result of disclosure in breach of the agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
• 7.2.4. where the information was available or known to it on a non-confidential basis before being disclosed under the agreement; or
• 7.2.5. where the information was developed by or for it independently of the agreement and is received by persons who are not the disclosing party.

7.3.

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.

7.4.

Where a party discloses confidential information in line with clause 7.2, to the extent it is legally permitted to do so, it shall give the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.4, it shall take into account the reasonable requests of the other party in relation to the content of such disclosure.

7.5.

A breach of clause 7.1 or 7.3 shall be considered a material breach of this agreement.

7.6.

This clause 7 shall survive termination of this agreement.

8. Indemnity

You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with your receipt and/or use of our Services, any infringement or alleged infringement of intellectual property rights of a third party caused by you, and any breach of these Terms by you and/or your authorised users (save where such claim, action, proceeding, loss, damage, expense or cost arises as a result of our failure to comply with our own obligations in respect of our Services).

9. Limitation of liability

9.1.

Except as expressly stated in clause 9.2:

• 9.1.1. the Customer shall be solely liable for any breach of the Customer’s obligations under this Agreement or any applicable laws or regulations, and for the consequences of any such breach;
• 9.1.2. Wavebrook shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: special damage even if Wavebrook was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; business interruption; wasted management time; loss of goodwill; loss or corruption of data; and wasted expenditure;
• 9.1.3. the total liability of Wavebrook, whether in contract, tort (including negligence) or otherwise and whether in connection with the Agreement or any collateral contract, shall in no circumstances exceed the greater of USD 10,000 (ten thousand US dollars) and the total Charges payable by the Customer to Wavebrook under the Agreement during the twelve months immediately preceding the date on which the claim first arose; and
• 9.1.4. the Customer agrees that, in entering into the Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Terms or (if it did rely on any representations, whether written or oral, not expressly set out in these Terms) that it shall have no remedy in respect of such representations and (in either case) Wavebrook shall have no liability in any circumstances otherwise than in accordance with the express terms of the Agreement.

9.2.

The exclusions in clause 9.1 shall apply to the fullest extent permissible at law, but Wavebrook does not exclude liability for:

• 9.2.1. death or personal injury caused by the negligence of Wavebrook, its officers, employees, contractors or agents;
• 9.2.2. fraud or fraudulent misrepresentation;
• 9.2.3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
• 9.2.4. any other liability which may not be excluded by law.

9.3.

Although we make reasonable efforts to update the information within our Services, we make no representations, warranties or guarantees, whether express or implied, that the content or information we provide is accurate, complete or up to date.

9.4.

Where we provide links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or materials, or information you may obtain from them. We have no control over the contents of those sites or resources.

10. Termination

10.1.

Wavebrook may terminate the Agreement at any time by providing thirty (30) days’ written notice to the Customer.

10.2.

Wavebrook may terminate the Agreement and any licences granted with immediate effect if:

• 10.2.1. the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
• 10.2.2. the Customer commits a material breach of any other term of the Agreement or fails to comply with any of Wavebrook’s guidelines and policies, and (if such breach or non-compliance is remediable) fails to remedy that breach or non-compliance within a period of five days after being notified in writing to do so;
• 10.2.3. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
• 10.2.4. the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy; or
• 10.2.5. Wavebrook has reasonable grounds for termination of the Agreement with immediate effect.

10.3.

The Customer may terminate the Agreement for convenience on 30 days’ notice to Wavebrook (including by submitting a request to terminate through the Customer’s user account), such termination shall take effect at the end of the current term at earliest (unless the Customer has terminated the Agreement by notice as a result of Wavebrook’s change of these Terms that directly and substantially contradict the terms and conditions of the Agreement in effect when the Customer initially accepted it, and the Customer finds these changes unacceptable; in such case termination shall become effective after the expiration of the 30 days’ notice period).

10.4.

Termination or expiry of the Agreement shall not affect 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.

10.5.

On termination:

• 10.5.1. all rights granted to the Customer under these Terms shall cease;
• 10.5.2. the Customer shall cease all activities authorised by these Terms; and
• 10.5.3. the Customer shall immediately pay to Wavebrook any sums due to Wavebrook under these Terms.

10.6.

Any provision of these Terms which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

11. General terms

11.1. Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.2. Entire agreement

The Agreement sets out the whole agreement between the parties relating to the subject matter hereof and supersedes all previous and contemporaneous agreements, arrangements and understandings between them, whether written or oral, relating to that subject matter. Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.

11.3. Variation

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.4. Severance

If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part-provision of the Agreement is deemed deleted under clause 11.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.5. Third-party rights

A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

11.6. No partnership or agency

Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

11.7. Force majeure

Neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, but not limited to, internet or telecommunications failures, shortages of or inability to obtain labour, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four weeks, the party not affected may terminate the Agreement by giving seven days' written notice to the affected party.

11.8. Notices

Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the other party’s recorded address. Any notice shall be deemed to have been received (i) if delivered by hand, at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting (where “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business); or (iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.9. Governing law

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.

11.10. Jurisdiction

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