Terms of Service
By your clicking agree to these terms, which are hereby offered to You (the "Customer") by Calq.io Limited, a company incorporated in England and Wales (registration number 09167388) having its registered office at 4 Maguire Street, London, SE1 2NQ (the "Provider"), You agree with the Provider to be bound by the following Agreement.
1. Definitions and interpretation
1.1 In this Agreement:
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means this software as a service agreement and any amendments to it from time to time;
"Business Day" means any week day, other than a bank or public holiday in England;
"Business Hours" means between 09:00 and 17:30 England time on a Business Day;
"Charges" means the amounts payable by the Customer to the Provider under or in relation to this Agreement (as set out in Schedule 3);
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" will be construed accordingly);
"Client Libraries" means the Apache 2.0 licensed libraries designed for transmitting data to the Platform made available on the Platform as part of the Documentation.
"Customer Confidential Information" means
- (a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as "confidential", described as "confidential" or should have been understood by the Provider at the time of disclosure to be confidential;
- (b) the financial terms and conditions of this Agreement;
- (c) the Customer Materials; and
- (d) other confidential information;
"Customer Materials" means all works, materials and data (excluding Personal Data):
- (a) uploaded to, stored on, processed using or transmitted to or via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and
- (b) otherwise provided by the Customer to the Provider in connection with this Agreement;
"Documentation" means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used;
"Effective Date" means the date of execution of this Agreement, as indicated by selecting "Agree" on the Provider's website (for the avoidance of doubt this includes the Provider's user registration and payment processes);
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, malicious software attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Minimum Term" means the period specified as such in Schedule 1;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Permitted Purpose" means the use of the Platform by the Customer solely for the internal business purposes of the Customer for the collection, analysis and interpretation of Customer’s data.
"Platform" means the analytics platform known as Calq that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under this Agreement;
"Schedule" means a schedule attached to this Agreement;
"Services" means all the services provided or to be provided by the Provider to the Customer under this Agreement, including any optionalSupport Services;
"Term" means the term of this Agreement; and
"Upgrades" means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
- (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- (b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
2.1 This Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter, unless terminated in accordance with Clause 12.
3. The Platform
3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practicable following the Effective Date. If the Customer has an existing account the Provider may opt make the Platform available to the Customer using the existing login details.
3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:
- (i) where the Customer is a company, the Customer's officers;
- (ii) where the Customer is a partnership, the Customer's partners; and
- (i) where the Customer is a limited liability partnership, the Customer's members;
3.4 Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:
- (a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
- (b) the Customer must not alter or adapt or edit the Platform save for the Client Libraries;
3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term, save for the Client Libraries.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9 The Customer must not use the Platform:
- (a) in any way that is unlawful, illegal, fraudulent or harmful; or
- (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4. Support Services and Upgrades
4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 2.
4.2 The Provider must not sub-contract the provision of any Support Services without obtaining the prior written consent of the Customer.
5. Customer Materials
5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
5.2 Subject to Clause 5.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
5.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:
- (a) breach any laws, statutes, regulations or legally-binding codes;
- (b) infringe any person's Intellectual Property Rights or other legal rights; or
- (c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case under the jurisdiction of UK law and the jurisdiction where the Customer Materials were sourced.
5.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, the Provider may:
- (a) delete or amend the relevant Customer Materials or Personal Data; and/or
- (b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
5.5 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of this Agreement for the purposes of Clause 12.
6.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule 3.
6.2 The Customer will pay the Charges to the Provider within 14 days of the date of issue of an invoice issued in accordance with Clause 6.1.
6.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts (except where services are offered beyond the scope of VAT).
6.4 Charges must be paid by credit or debit card using the payment facilities on the Provider's website unless agreed otherwise. Payment by bank transfer may be offered as an alternative method of payment at the Provider's discretion, using such payment details as are notified by the Provider to the Customer from time to time.
6.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:
- (a) charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or
- (b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
6.6 The Provider may vary the Charges payable under Schedule 3 on and from any anniversary of the Effective Date by giving to the Customer not less than 90 days' written notice of the variation.
6.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under this Agreement are overdue by more than 30 days.
6.8 Subject to Clause 12, no charges will be refunded if the Customer and provider mutually agree to terminate this agreement before the Minimum Term.
7.1 The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
7.2 The Provider warrants to the Customer:
- (a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
- (b) that it will perform its obligations under this Agreement with reasonable care and skill;
- (c) that the Platform will be hosted in accordance with the requirements set out in Schedule 1, and will be available to the Customer in accordance with the uptime commitments given in Schedule 2;
(d) the Platform (excluding for the avoidance of doubt the Customer Materials and Personal Data) will not:
- (i) breach any laws, statutes, regulations or legally-binding codes;
- (ii) infringe any person's Intellectual Property Rights or other legal rights; or
- (iii) give rise to any cause of action against the Provider or the Customer or any third party,
7.3 The Customer acknowledges that:
- (a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
- (b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in Schedule 1; and
- (c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
7.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
8.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 5.3.
8.2 The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 7.2.
9. Limitations and exclusions of liability
9.1 Nothing in the Agreement will:
- (a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
- (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
- (c) limit any liability of a party in any way that is not permitted under applicable law; or
- (d) exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
- (a) are subject to Clause 9.1;
- (b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
- (c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
9.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
9.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.
9.5 Neither party will be liable for any loss of or damage to goodwill or reputation.
9.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.
9.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.
9.8 Neither party will be liable for any losses arising out of a Force Majeure Event.
9.9 Except for the indemnification obligations of each party and a breach of confidentiality, neither party's liability in relation to any event or series of related events will exceed the total amount paid and payable by the Customer to the Provider under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
9.10 Except for the indemnification obligations of each party and a breach of confidentiality, neither party's aggregate liability under the Agreement and any collateral contracts will exceed the total amount paid and payable by the Customer to the Provider under the Agreement.
10. Data & data protection
10.1 The Customer warrants that:
- (a) it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement; and
- (b) it will not use the Platform to collect, store or process sensitive information where unauthorised disclosure could cause harm or impact the Provider. Sensitive information includes, but is not limited to:
(i) information under regulatory or contractual handling requirements (such as PCI) including:
- a. Credit, debit and banking card information, including credit card numbers, CCV/CIV numbers, expiry dates, and magnetic stripe information;
- b. Government and government organisation issued identity information, including passport numbers and drivers licence numbers;
- c. Financial account information;
- d. Medical records;
- e. Biometric data;
- f. Personally identifiable information knowingly collected from children under the age of 13 from services directed towards children;
- (ii) passwords and other authorisation and authentication credentials.
- (i) information under regulatory or contractual handling requirements (such as PCI) including:
10.2 The Provider warrants that:
- (a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
- (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer. Examples of these security measures include limited and password-protected access, encryption on processed data (subject to Schedule 1), and SSL encryption to protect transmission of data.
10.3 The Customer acknowledges that the Provider may store Customer Materials, Personal Data, and other Customer related data in the UK, Ireland, and the US. The Customer will comply with all applicable laws regarding the transmission of data exported to or from these countries and the countries with which Customer operates or resides, including but not limited to, those followed regarding the transfer of personally identifiable information from the European Economic Area and/or Switzerland to the United States under the US–EU and US–Swiss Safe Harbours, respectively, relating to the collection, use and disclosure of Visitor data, including personally identifiable information.
10.4 The Customer acknowledges that the Platform may store cookies on computers used by those who visit your website. These data contained in these cookies includes a property that indicates whether or not a visitor is first time visitor to your website, or a repeat visitor. The Customer warrants that:
- (a) it will comply with all applicable laws relating to the placement of cookies on visitors computers, including Directive 2009/136/EC of the European Parliament (“the Cookie Directive”) where it applies; and
- (c) it will have obtained all required consents and authorizations from your website Visitors relating to the use of such cookies.
11.1 The Provider will:
- (a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 11;
- (b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
- (c) without prejudice to the generality of Clause 11.1(b), deploy and maintain any security systems and technologies detailed in Schedule 1 in relation to the Customer Confidential Information held on the Platform.
11.2 Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.
11.3 The obligations set out in this Clause 11 shall not apply to:
- (a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
- (b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
- (c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
- (d) Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Provider must where permitted by law give to the Customer prompt written notice of the disclosure requirement.
12.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of this Agreement, and:
- (i) the breach is not remediable; or
- (ii) the breach is remediable, but the other party fails to remedy the breach within 14 days of receipt of a written notice requiring it to do so; or
- (b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach).
12.2 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
- (i) is dissolved;
- (ii) ceases to conduct all (or substantially all) of its business;
- (iii) is or becomes unable to pay its debts as they fall due;
- (iv) is or becomes insolvent or is declared insolvent; or
- (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
- (d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
12.3 The Customer may terminate this Agreement by giving at least 30 days' written notice of termination to the Provider, expiring at any time after the end of the Minimum Term.
12.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 60 days' written notice of termination to the Customer.
12.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.
12.6 The Provider and Customer may terminate this agreement before the Minimum Term upon the agreement of both parties.
13. Effects of termination
13.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.5, 8, 9, 11, 13 and 16.
13.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
13.3 Subject to Clause 13.4, within 60 days following the termination of the Agreement, the Provider will:
- (a) irrevocably delete from the Platform all Customer Confidential Information; and
- (b) irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer or dispose of as the Customer may instruct all documents and materials containing Customer Confidential Information.
13.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of this Agreement if:
- (a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
- (b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
14.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause).
4 Maguire Street
14.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
- (a) where the notice is delivered personally, at the time of delivery;
- (b) where the notice is sent by recorded signed-for post, 48 hours after posting; and
- (c) where the notice is sent by or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
15. Force Majeure Event
15.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
15.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
- (a) forthwith notify the other; and
- (b) will inform the other of the period for which it is estimated that such failure or delay will continue.
15.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
16.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.4 Each party hereby agrees that the other party may freely assign all of its contractual rights and obligations under this Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.
16.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
16.6 Subject to Clause 9.1:
- (a) this Agreement constitutes the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
- (b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
16.7 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Schedule 1 - Miscellaneous
1. Minimum Term
1.1 The Minimum Term shall be the period of 12 months following the Effective Date if paying annually, or a single month if paying monthly.
2. Platform specification
2.1 The Platform is an analytics service which allows the Customer to learn how visitors use a product or service, such as a website, web application, mobile site, or mobile application.
The Platform provides the ability to collect information from visitors based on interactions where the Customer has integrated the Platform with their product or service. Subject to the restrictions on use in this agreement, Customer can choose the data they would like to collect about each interaction. In addition some of the Platform’s Client Libraries may automatically collect additional data, such as capabilities of the device being used by the visitor.
2.2 The Platform consists of 3 main components:
- (a) the API which allows interaction data to be transmitted to the platform over the internet using HTTP or HTTPS; and
- (b) a selection Client Libraries (provided as part of the Documentation) to facilitate communication between visitor devices and the API; and
- (c) a reporting interface to analyse and visualise data sent to the Platform.
2.3 The Platform has servers in a number of locations internationally. This allows the closest server to respond to a visitor in an effort to respond quickly. Processed data stored for analytics is only stored on servers in the UK, Ireland, or the US.
3. Security options
3.1 Unless explicitly agreed with Provider (in addition to this agreement) Customer's data will not be stored using a dedicated encrypted setup. As a result any Customer Materials and Personal Data may not be held on encrypted storage. This also applies to backups of customer data. Customer warrants they will not use the Platform to store, analyse or process data which requires encrypted storage by law.
3.2 Customer has access to both HTTP and HTTPS endpoints for transmitting data to the Platform. Customer will decide which endpoint is appropriate for their data.
Schedule 2 - Service Level & Support Services Agreement
1.1 In this Schedule:
"New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and
"Protected Functionality" means the data collection API provided by the Platform to receive incoming Customer data over the internet.
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2.1 The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:
- (a) assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer's other systems;
- (b) assisting the Customer with the proper use of the Platform; and/or
- (c) determining the causes of errors and fixing errors in the Platform.
2.2 The Customer must make all requests for Support Services through the helpdesk.
3. Response and resolution times
3.1 The Provider will:
- (a) use reasonable endeavours to respond to requests for Support Services made through the helpdesk; and
- (b) use reasonable endeavours to resolve issues raised by the Customer, promptly.
3.2 All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.
4. Limits on Support Services
4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs 2 and 3 during any calendar month exceed 12 hours then:
- (a) the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that
- (b) the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard hourly rate from time to time.
4.2 The Provider will waive the limit on requests for Support Services where the request is due to Provider confirmed defects in the Platform.
4.3 The Provider shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:
- (a) the improper use of the Platform; or
- (b) the use of the Platform otherwise than in accordance with the Documentation.
5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes the appearance and/or functionality of the Platform.
5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality.
5.3 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
- (a) the Upgrade introduces New Functionality to the Platform;
- (b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;
- (c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and
- (d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.
6. Uptime commitment
6.1 The Provider makes no guarantees to the availability of the Platform and shall have no liability for any Platform downtime including, but not limited to, any downtime caused by:
- (a) failures of or previously scheduled maintenance to the Platform’s equipment or servers;
- (b) failures of or problems with the internet or a part of the internet;
- (c) any Force Majeure Event.
7. Back-up and restoration
7.1 The Provider will:
- (a) make back-ups of the Customer Materials stored on the Platform on a daily basis, and will retain such back-ups for at least 7 days; and
- (b) at least once every 7 days, the Provider will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Platform (which will be over-written on the following off-site back-up date).
7.2 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph 2, the Provider shall if so directed by the Customer use reasonable endeavours to promptly to restore the Customer Materials from the most recent available back-up copy.
8. Scheduled maintenance
8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out outside Business Hours and such suspension to be for not more than 4 hours in each calendar month.
8.2 Access to Protected Functionality shall not be suspended for maintenance.
8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6.
Schedule 3 - Charges
1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
1.2 The Charges under the Agreement will consist of the following elements:
- (a) usage Charges, in respect of access to and use of the Platform;
- (b) support Charges, in respect of the Support Services; and
- (c) other Charges.
2. Usage Charges
2.1 Customer can pay for Platform usage either monthly or annually. Annual payments are eligible for a discount when compared to the monthly price.
2.2 Usage Charges are based on the number of unique visitors measured by the platform within a calendar month (“the Plan Limit”). Technology provided as part of the Platform will decide which visitors are unique, and which are repeat visits within each calendar month.
2.3 Customer will be charged overage fees if they exceed the Plan Limit within a single calendar month. Overage fees will be calculated at the end of the calendar month pro rata based on the additional number of measured unique visitors. A Customer will be automatically upgraded to a higher Plan Limit if this would work out cheaper than a pro rata customer charge for that month. In this event Customer will be charged for the increase price of the upgraded plan, factoring in any Usage Charges paid already for the calendar month.
2.4 Charges per Plan Limit are available on Providers website at https://calq.io/pricing.
2.5 In the event of an overage charge where Customer has already reached the highest Plan Limit then the Charge will be a pro rata Charge per measured visitor based on the highest available plan.
2.6 The usage Charge is not refundable even if Customer does not make use of the Platform.
2.7 As a "fair use policy" Provider may impose additional charges if Customer measures an abonormally large amount of actions per measured user. These charges will be in line with current industry prices.
3. Other Charges
3.1 Where any other Charges are to be calculated by reference to an hourly or daily rate, the following rates shall apply as at the date of this Agreement:
- (a) Hourly: £170 per hour.
- (b) Daily: £1,105 per day.
If you have any questions about our Terms, please contact us.