Last modified January 2016.
These terms and conditions are the agreed terms (the "Agreement") for access to and use of the App, and other products and services (the "Services") provided by Agile Projects Ltd (company number 07655049) whose registered office is at 52 Great Eastern Street, London, EC2A 3EP ("Agile", "We", "Our" or "Us") to you as either an individual or a legal entity that you represent as an authorised employee or agent ("You" or "Your") the details of which are provided by You when You sign up. This Agreement also applies to any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services being supplied by You including all content published by You via the App (collectively referred to as "Content"). Your access to and use of the Services is conditional on Your acceptance of and compliance with this Agreement. By accessing or using the Services you agree to be legally bound by this Agreement. If you do not agree to be bound by the terms and conditions in the Agreement, please immediately cease using the App and the Services.
Upon registration, in consideration of payment of the fees set out on our website at https://www.popcheck.com (the "Service Charges"), Agile shall grant You access to the Services and certain administrative tools and reports accessible via the internet for managing your access to the Services (the "Dashboard"). In consideration of Agile granting you access to the Dashboard you agree to comply with all policies and procedures contained within the Dashboard. As part of the Services, You will be able to provide Content to consumers of the App ("End-Users"). The Services and Dashboard are intended to allow End-Users to capture photos, survey data and other information from locations they visit using their smartphone. The App will be branded in accordance with the branding requirements You supply to Us for that purpose subject to the terms and conditions set out in this Agreement.
2. Acceptable Use Restrictions
You must not and must not permit others to: (a) rent, lease, loan, sell, redistribute, merge, adapt, vary or sublicense the Services; or (b) copy (except as expressly permitted by Agile), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services) (c) remove or modify any copyright, trademark, or other proprietary notices belonging to Us or any third parties contained within the Services. (d) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Services or any operating system; (e) transmit any material that is defamatory, offensive or otherwise objectionable in relation to Your use of the Services; (f) use the Services in a way that could damage, disable, overburden, impair or compromise Our systems or security or interfere with other users; (g) collect or harvest any information or data from any Service or Our systems or attempt to decipher any transmissions to or from the servers running any Service; (h) fail to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Services.
3. Your Content and Relationship with End-Users
You agree that Agile may review, modify and delete any Content (including but not limited to, locations, images and messages) posted by You onto the Services ("Your Content") at any time and for any reason. You agree that you take sole responsibility for Your Content. You agree not to include within Your Content any material of a sexual nature or content that We may deem to be vulgar, offensive or inappropriate. All of Your Content must comply with terms of service of any and all application markets on which the Services are published, such as but not limited to, Apple's App Store and Google's Google Play. By posting Your Content on the Services, You automatically grant all rights to Agile to use, copy, display, and distribute Your Content. You agree that Agile has the right to post and update Content on the Service. You warrant that Your Content will not breach the intellectual property rights of any third party and that you have obtained and continue to hold all necessary permissions and licences to enable you to post Your Content on the Services. Without limiting the foregoing You confirm that you own or control any trade marks, logos and service marks which are included as part of Your Content and that you have the full right to license the use of such intellectual property rights as part of the Service for the purpose intended by this Agreement. You agree to indemnify Agile on a full indemnity basis in respect of any claim brought against Agile arising from anything contained within Your Content.
4. Proprietary Materials
You acknowledge that all intellectual property rights in the Services and the Content provided by Agile (but excluding Your Content) belong to or are licensed to Agile, that the right to use the Services are licensed (not sold) to You, and that You have no rights in, or to, the Services other than the right to use each of them in accordance with the terms of this Agreement. You acknowledge that You have no right to have access to the Services in source-code form. The trade marks, logos and service marks ("Marks") displayed on the Services provided by Agile are the property of Us and other third parties. You are prohibited from using any Marks for any purpose without the written permission of Agile or the third party that owns the Marks.
5. Changes to the Services and this Agreement
Agile reserves the right to make changes to this Agreement at any time, with or without prior notice to You. Agile shall provide reasonable prior notice regarding changes in its pricing for the Services. If You continue to use the Services after changes have been made to the Agreement You are confirming Your acceptance of each and every change and the new terms will apply from that time. When a change has been made to this Agreement Agile will update the 'Last Modified' date at the beginning of this document. If You do not agree with any changes made to the Agreement, You must immediately cease using the Services. Agile may also make changes to the Services at any time, these may include changes to the Dashboard and the mobile applications including the feature set available to the End-Users. We will use reasonable endeavours to ensure that functionality is not lost when making changes to the Services. When notice is required to be given to You, it will be made via email at the most recent contact email address You have supplied to Agile. You are responsible for providing Agile with a current email address. Your continued use of the Services shall be deemed as acceptance of any and all changes to the Services and/or this Agreement.
7. Access to the Dashboard
You shall be provided with administrative user IDs and passwords as part of the registration process (the "Log-in Information"), as well as instructions regarding the use of such Log-in Information. You shall be responsible for maintaining the security of Your Log-in Information, including but not limited to establishing procedures and policies to limit access to such Log-in Information to authorised individuals. You shall be fully responsible for all activities which occur relating to Your access to the Services. You agree to notify Agile immediately at firstname.lastname@example.org if You believe there may be a breach of data security.
8. Hosting and Support
You understand and agree that the Services are hosted by third parties such as Amazon Web Services, Apple's App Store and Google's Google Play and that data shall be stored and maintained in accordance with the applicable terms and conditions of those third parties. Agile will provide email support and problem diagnosis (which may be provided by third-party contractors to Agile) from 9 AM to 5 PM UK Time Monday to Friday, excluding public holidays. You may request support by emailing email@example.com.
9. Payment and Service Charges
Your use of the Services and Dashboard are subject to You agreeing to pay the Service Charges, (subject to any applicable price changes notified to You in accordance with the terms of this Agreement). The full details of the Service Charges payable by You for the Services and any equipment hire including amounts, frequency and timing of payments are as set out on our website at http://www.popcheck.com. The Service Charges are non-refundable. The Service Charges are exclusive of taxes. If You fail to pay the Services Charges when due, Agile may at its sole discretion suspend or terminate this Agreement without notice and Your access to the Services and the Dashboard will be immediately terminated.
10. Contract Duration & Cancellation
This Agreement will continue for an initial period of one (1) month (the "Initial Term") and shall continue thereafter until terminated by either You or Us. You or Agile may terminate this Agreement after the Initial Term on 30 days notice. If You wish to terminate the Agreement after the Initial Term You must send a request to firstname.lastname@example.org and We will close Your account and cancel Your access to the Services and Dashboard within 30 days. In addition Agile reserves the right to terminate Your account without notice at any time if You breach any of the terms of this Agreement, including but not limited to the payment terms. The Initial Term and any continuation thereof shall be defined as the "Term".
11. Internet Access
Access to and use of the internet is required to access the Services. Agile is not an internet service provider and it is Your responsibility to arrange the required internet access. You are solely responsible for any network operator charges. You are responsible for providing at Your expense all services and equipment necessary to gain access to the internet for connecting and operating the Services. Agile shall have no liability and You shall not be excused from any obligation under this Agreement, if You experience problems that are a result of the quality, speed or interruption of Your access to the internet.
You agree to indemnify, hold harmless and defend Agile at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against Agile or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by Agile or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Services, or (iii) the publication of Your Content, (iv) Your breach of any Law in connection with the Service. In such a case, Agile will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defence of any claim. Agile reserves the right to assume the exclusive defence and control of any matter subject to indemnification by You.
13. No Warranty
Agile (or its officers, employees or agents) makes no warranties, representations, express or implied, guarantees or conditions with respect to Your use of the Services. You understand that use of the Services is at Your own risk and that We provide the services on an "as is" basis "with all faults" and "as available". No guarantee is given as to the accuracy or timeliness of any information available. Agile makes no warranty that the Services will meet Your requirements or be fit for a particular purpose. We also make no warranties or representations with regards to the results generated from use of the Services. Agile assumes no responsibility for the conduct of any third parties including other parties accessing the Dashboard and the Services and End Users. To the extent permitted under Your local law, We exclude any implied warranties, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort, and non-infringement. You may have certain rights under Your local law. Nothing in this Agreement is intended to affect those rights, if they are applicable. You acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. We do not guarantee the Services will be uninterrupted, timely, secure, or error-free or that content loss will not occur.
14. Limitation of Liability
You agree that Your use of the Services is at Your sole risk. You can recover from Us for all successful claims only direct damages up to a total amount of £50. You cannot recover any other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits. This limitation applies to anything related to this Agreement, for example the Services; loss of data; Content; Third Party Materials; viruses or other disabling features; incompatibility between the Services and other services, software, or hardware; delays or failures You may have in initiating, conducting, or completing any transmissions or transactions in connection with the Services in an accurate or timely manner; and claims for breach of contract; breach of warranty, guarantee, or condition; misrepresentation; omission; strict liability; negligence; or other tort. It also applies even if this remedy does not fully compensate You for any losses, fails of its essential purpose or We knew or should have known about the possibility of the damages. You agree that Agile is not responsible in any way for any Third Party Materials or for any problems with the Services that are caused by a matter beyond Our control, including but not limited to internet failures, equipment failures, power failures, severe weather, industrial disputes and sabotage. Nothing in this Agreement will affect the statutory rights of any consumer. Nothing in this Agreement will exclude or restrict liability for death or personal injury arising from Our negligence, fraud, gross negligence or willful intent. Some or all of these limitations or exclusions may not apply to You if Your state, province, or country does not allow the exclusion or limitation of incidental, consequential or other damages.
15. Governing Law and Jurisdiction
The Agreement and Your use of the Services are governed by, construed and enforced in accordance with English law. Your use of the Services may also be subject to other local, national, or international laws.
16. Unenforceable Terms
If any provision of this Agreement is held to be unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of You and Agile with the other provisions remaining in full force and effect.
17. No Waiver
No failure or delay by Us to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
18. Transfer of Rights
Agile may transfer any rights under this Agreement to another organisation, this will not affect Your rights or obligations under this Agreement. You may not transfer Your rights under this Agreement.