EYESDECIDE TERMS OF SERVICE

This Terms of Service and all terms, policies, and guideline incorporated in the Terms of Service by reference, including, but not limited to, our Privacy Policy, any Order Forms (collectively, this “Agreement”) forms a legally binding contract between you (“Client”) and xLabs Pty Ltd (“xLabs”) that governs your access and use of the xLabs EyesDecide. By using the Platform or by signing an Order Form, which references these Terms of Service, Client agrees to be bound by this Agreement. If Client is using the Platform or Additional Services on behalf of a corporation, Client agrees to this Agreement for that corporation and represents to xLabs that Client has the authority to bind the corporation to their Agreement (in such event, “Client” will refer to the corporation). Client may use the Platform and Additional Services only in compliance with this Agreement and only if Client has the power to form a contract with xLabs and is not prohibited under any applicable laws from doing so.

IF CLIENT DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CLIENT MUST NOT USE THE PLATFORM OR ADDITIONAL SERVICES.

1. Definitions

As used in this Agreement and in any Order Form(s) associated herewith:

“Additional Services” means the professional services provided by xLabs relating to Studies as requested by Client through the Order Form;

“Client Data” means all material, images, video, data or information that Client uploads to the Platform or provides to xLabs to fulfil an order;

“Client Viewers” means the individuals using the Platform to participate in Studies that have been provided by the Client and/or a third party instructed by the Client;

“Content” means all information, documents, reports, software, products and services other than Client Data that are contained in or made available via the Platform;

“Initial Term” means the initial subscription period commencing on the Order Effective Date as specified in the applicable Order Form;

“Intellectual Property Rights” means all copyrights, unpatented inventions, patent applications, patents, designs, databases, registered and unregistered trademarks, brand names, business names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and similar forms of protection anywhere in the world;

“Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective;

“Order Form” means the signed order form or a product/subscription package selected and agreed to by the Client via the Platform along with any subsequent Order Form(s), specifying, among other things, the Order Effective Date, the Initial Term, View Credits, number of Studies and Additional Services as agreed to between the parties, each such Order Form to be incorporated into and to become a part of these Terms of Use (if there is any conflict between the terms of these Terms of Service and the terms of any such Order Form, the terms of these Terms of Service shall prevail);

“Panel Viewers” means the independent third-party service providers using the Platform to provide services to Client by participating in Studies. The Panel Viewers are neither employees nor agents of xLabs. xLabs expressly disclaims all liability for the acts or omissions of the Panel Viewers;

“Platform” means xLabs’ webcam eye-tracking and data analytics software platform, named “EyesDecide,” as described by xLabs on www.eyesdecide.com developed, operated, maintained and hosted by xLabs or its third party hosting provider;

“Renewal Term” means each subsequent period equal in length to the Initial Term;

“Research Client Customers” means, if Client is a marketing and/or research agency or similar service provider, the companies for whom Client uses the Platform and Additional Services;

“Studies” means eye-tracking surveys displaying Client Data that Client may conduct through the Platform;

“View Credits” means prepaid credit amounts that may be applied to Client Viewers and/or Panel Viewers as governed by specific Order Form or Subscription Package;

“Viewers” means Client Viewers and Panel Viewers collectively;

“xLabs Technology” means all of xLabs proprietary technology utilised by xLabs and Viewers in performance of its obligations under the Agreement;

2 License Grant

2.1 License. Subject to the terms and conditions of this Agreement xLabs hereby grants Client a limited, revocable, non-exclusive, non-transferable and non-assignable right to access and use the Platform for the purpose of conducting Studies solely for Client’s own internal business purposes. xLabs, its licensors and/or its suppliers reserve all rights not expressly granted to Client in this Agreement. xLabs may make improvements and/or changes to the Platform from time to time at its sole discretion.

2.2 Research Client Customers. Notwithstanding the terms of Sections 2.1 above or 2.3 below if Client is a marketing and/or research agency or similar service provider, then Client may download, copy, license, sell and distribute tangible copies of reports that include aggregated data generated through Client’s use of the Platform and to Research Client Customers, on the condition that Client disclaims all warranties and liabilities on behalf of xLabs or Client’s licensors.

3 Use of the Platform

3.1 Limitations on Use: Except as otherwise expressly permitted hereunder, Client shall not (a) reproduce, mirror, modify, or create derivative works based upon the Platform, Additional Services or Content; (b) transfer, lease, lend, sublicense, resell or otherwise distribute or allow third-party access to all or any portion of the Platform; (c) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or the Content in any way; (d) reverse engineer or access the Platform in order to (i) build a competitive product or service, (ii) copy any ideas, features, graphics or images of the Platform.  Additionally, Client shall not use the Platform to: (a) upload or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or Intellectual Property Rights; (b) upload or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (c) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or (d) attempt to gain unauthorised access to the Platform or its related systems or networks or to any Client Data belonging to another customer or to Studies that are not displayed in, or intended for, Client’s account.

3.2 Client Responsibilities. Client is responsible for all activity occurring under Client’s accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Platform, Additional Services and the Client Data, including those related to data privacy, international communications and the transmission of technical or personal data.

3.3 Viewer Privacy. Notwithstanding any other provision included herein, Client agrees not to use the Platform, Studies or Additional Services to collect, retrieve, transmit, store, deliver or provide xLabs with access to any personally identifiable information that could be legally considered private or sensitive in any applicable jurisdiction, including, without limitation, government issued ID numbers, individual health or medical information, individual financial information, credit or debit card numbers, security codes, passwords, an individual’s name (last name and first name or first initial) or any other information that, either alone or in combination with other data, could be used to identify or contact a particular person. Client agrees to indemnify xLabs, its directors, officers, employees, licensors and authorized agents from all and any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or Client as a result of the collection, use, transfer, or other processing of Viewers Personally Identifiable Information supplied by a Viewer in connection with any Client Study.

4 License to Client Data.  

xLabs does not own any Client Data. Client, not xLabs, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data. xLabs reserves the right to monitor Client Data but is under no obligation to do so. xLabs shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data.  Client hereby grants xLabs a perpetual, non-exclusive, royalty-free license to use the Client Data: (a) as necessary to provide the Platform and Additional Services to Client under this Agreement;  (b) as necessary to monitor, analyse and improve the Platform; and/or (c) compiling aggregate data derived from Client’s use of the Platform to compile metrics, statistics, insights and general performance data about the Platform for, among other things, xLabs marketing and promotional purposes. This information will be presented only in anonymized aggregate form, and in no event will we compile specific data that identifies Client or Research Customers without your expressed permission.

xLabs is not in the business of selling client data. However in addition to the above there are certain circumstances in which we may need to share Client Data with third parties if required to do so as a legal requirement or in a good faith belief that such action is necessary to (a) comply with a legal obligation, (b) protect and defend rights or property of xLabs, or (c) protect against legal liability. Client represents and warrants having all rights, licenses, and consents required to license Client Data to xLabs under the terms of This Agreement, and further represent and warrant that this license does not infringe the rights of any third party or violate any applicable law or regulation.

5. Intellectual Property Ownership

xLabs alone (and its licensors, if and where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the xLabs Technology, the Platform, the Content and the Additional Services and with the exception of Client Data any recommendations, ideas, feature requests, feedback, suggestions or other information provided by Client or any other party relating to the Platform. This agreement does not provide or imply to Client any rights of ownership in or related to the Platform, xLabs Technology or the Intellectual Property Rights owned by xLabs. The xLabs name, xLabs logo, EyesDecide name, EyesDecide Logo are trademarks of xLabs or third parties, and no right or license is granted to use them.

6. Payment 

Client shall pay to xLabs all fees and charges set forth in the Order Form in accordance with the billing and payment terms set forth on the EyesDecide website or in an Order Form and this Agreement. Client agrees to provide xLabs with accurate billing, payment and contact information that is promptly update with any changes. Client authorizes xLabs or its third-party payment processors to bill client’s credit card or other payment instrument in advance on a periodic basis at the Initial Term and every subsequent Renewal Term(s) (collectively “Billing Cycle”) in accordance with such terms. Client may cancel orders by emailing support@eyesdecide.com. Client will not receive any refunds for fees paid.

Unused Viewer Credits, whether included or purchased separately will not be carried over a Billing Cycle. Client will be deemed to have forfeited any unused Viewer Credits at the end of each Billing Cycle.

Changes and Taxes.  xLabs reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least ten (10) days prior notice to Client, which may be sent by email or posted on the Platform, effective upon the next Renewal Term.

Sales and use tax, VAT or GST, or similar governmental assessments of any nature are the sole responsibility of the Client, and Client hereby acknowledge and agree that the all fees are exclusive of all such taxes. XLABS RESERVES THE RIGHT TO SUSPEND OR TERMINATE CLIENT ACCESS TO THE PLATFORM IF CLIENT FAILS TO MAKE ANY PAYMENT TO XLABS WITHIN SPECIFIED PAYMENT TERMS. XLABS WILL ALSO TERMINATE CLIENT ACCESS TO THE PLATFORM UPON THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. XLABS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH SUSPENSION OR TERMINATION OF CLIENT ACCESS TO THE PLATFORM, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, EVEN IF XLABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Unless otherwise stated, all fees are quoted in the currency specified in the applicable Order Form.

7. Client Indemnity

Client agrees to indemnify xLabs, its directors, officers, employees, licensors and authorized agents from all and any claims, causes of action, damages, judgments, settlements, and/or costs to the extent arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party; (ii) a claim arising from the breach by Client this Agreement; (iii) any claim arising out of Client’s license, sale and/or distribution of tangible copies of reports generated through Client’s use of the Platform to third parties; or (iv) a claim by a third party or Viewer as a result of the collection, use, transfer, or other processing of Viewer’s Personally Identifiable Information when specifically requested by Client in connection with any Study.

8. Confidentiality

8.1 Confidential Information.  “Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Client or xlabs and any proprietary information, trade secrets, and know how of Client or xLabs that are disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.

Confidential Information includes information that is defined as “Confidential Information” under any Order Form between the parties.  Confidential Information also includes the confidential information of third parties that has been provided to Client or xLabs.  Each party’s Confidential Information is the sole property of that party.

8.2 Exceptions.  Confidential Information does not include any information that either party can demonstrate: (a) was publicly known and made generally available in the public domain before the other party disclosed the information, (b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations, (c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.

8.3 Nondisclosure and Nonuse.  Each party will not, during and after the term of this Agreement disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than the performance of its obligations hereunder.  Each party will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement.

9. Warranties and Warranty Disclaimer

9.1 Client Warranties. Client represents and warrants that Client has full power and authority to enter into the Agreement and the terms of conditions of this Agreement will constitute a valid and binding obligation of Client; and that Client has the rights to upload and use the Client Data, that the Client Data does not infringe the Intellectual Property Rights of any third party and Client has not falsely identified itself nor provided any false information to gain access to the Platform and that Client’s billing information is correct.

9.2 xLabs Warranties. xLabs represents and warrants that the Platform, Additional Services and xLabs Technology provided by xLabs, if any, shall be provided in a professional and workmanlike manner.  In the event of a breach of this warranty, Client’s sole remedy and xLabs’ sole obligation will be for xLabs to make reasonable commercial efforts to correct the non-conformity or, if xLabs is unable to correct the non-conformity, xLabs may allow Client to terminate the applicable Order Form.

9.3 Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SPECIFIED IN SECTION 10 (LIMITED WARRANTY) OF THIS AGREEMENT, THE PLATFROM, ADDITIONAL SERVICES, CONTENT, XLABS TECHNOLOGY, THIRD PARTY DATA AND DOCUMENTATION ARE PROVIDED “AS IS” AND XLABS, ITS SUPPLIERS AND LICENSORS MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES SHALL ARISE BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. XLABS, ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE PLATFROM, ADDITIONAL SERVICES, CONTENT, XLABS TECHNOLOGY, THIRD PARTY DATA, OR DOCUMENTATION WILL MEET CLIENT NEEDS OR OTHER REQUIREMENTS OR EXPECTATIONS, OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR TIMELY. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORM THE BASIS FOR DETERMINING THE PLATFROM FEES AND CHARGES. XLABS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF XLABS.

10. Limitation of Liability

IN NO EVENT WILL XLABS BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, DATA, LOST PROFITS, BUSINESS LOSS OR ANY OTHER INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES WHETHER OR NOT XLABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XLABS AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO XLABS FOR THE USE OF THE PLATFORM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH DAMAGES.

11. Term, Renewal and Termination

11.1 Term and Renewal.  The Initial Term of this Agreement shall begin on the Order Effective Date and continue for the Initial Term as set forth in each Order Form. The Initial Term of each Order Form will automatically renew for Renewal Terms unless a party notifies the other party in writing of its intent not to renew at least thirty (30) days in advance of the end of the Initial Term or subsequent

Renewal Terms.  Either party may terminate this Agreement on written notice to the other party if there is no current Order Form.

11.2 Termination for Breach.  Either party may terminate this Agreement (and any Order Form(s) then in effect) if the other party breaches any material term of this Agreement which, in the case of Client, will include any breach of Client’s payment obligations or unauthorized use by Client of the xLabs Technology, if the other party fails to cure such breach within ten (10) business days after notice of such breach.

11.3 Survival.  Termination or expiration of this Agreement shall not relieve either party of obligations that by their nature or term survive termination or expiration; such as, by way of example and without limitation, the obligation to make all payments that have or will become due under these Terms of Use, Sections 1 (Definitions), 3 (Use of the Platform), 4 (License to Client Data), 5 (Intellectual Property Ownership), 7 (Client Indemnity), 8 (Confidentiality), 9 (Warranties and Warranty Disclaimer), 10 (Limitation of Liability), 11.3 (Survival), 11.4 (Effect of Termination) and 12 (General).

11.4 Effect of Termination.  Upon termination or expiration of this Agreement: each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control and Client will no longer have access to the Platform. Client agrees and acknowledges that xLabs is not obligated to retain Client Data for longer than thirty (30) days after termination and if Client requests Client Data within such thirty (30) day period, subject to Client’s payment of the applicable fees, xLabs will provide Client with the Client Data.  Thereafter, xLabs has no obligation to retain Client Data, and may delete Client Data from the Platform.

12 GDPR Terms for Customers in Europe

12.1 Effective Date and Definitions. These additional terms will apply to you from May 25, 2018, where you are a customer of xLabs and are operating as a “data controller” (as that term is defined in the GDPR) in your use of the Services.

The terms “personal data”, “data subject”, “processing”, and “processor” shall have the meanings given to those terms respectively in the GDPR.

12.2 Processing Instruction. By requesting the Services and agreeing to these Terms and the EyesDecide Privacy Policy, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.

12.3 Customer Obligations. You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to EyesDecide so that EyesDecide may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by EyesDecide in the provision of the Services.

12.4 EyesDecide Obligations. Where EyesDecide is processing personal data on your behalf, it will:

1. only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and the EyesDecide privacy policy constitute such documented instructions;
2. ensure that all EyesDecide personnel involved in the processing of personal data have committed themselves to confidentiality;
3. where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by EyesDecide and is not otherwise available to you through your account and user areas or on EyesDecide websites, provided that you provide EyesDecide with at least 14 days’ written notice of such an information request;
4. promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Services;
5. upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes; and
6. to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.

12.5 EyesDecide sub-processors. EyesDecide uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorization to EyesDecide to engage onward sub-processors, subject to compliance with the requirements set out here. If you object to a particular sub-processor, who we cannot disassociate from your Services, your sole remedy will be to terminate your subscription relating to the Services that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.

13 Miscellaneous

13.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent except in the event of a merger, acquisition or sale of substantially all of an assigning party’s assets. Any attempt to assign this Agreement other than as permitted above will be null and void.

13.2 Registration. To obtain access to the Platform, Client may be required to obtain an account with xLabs by signing up and providing an email and password. When registering with xLabs Client must: (a) provide true, accurate, current and complete information, and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. By registering with xLabs, Client agrees that xLabs may send Client communications or data regarding the Platform or Services, including but not limited to promotional information and materials regarding xLabs’ products and services, via electronic mail.

13.3 Notices. Notice shall be deemed given upon receipt via e-mail, personal delivery, or postage prepaid by certified or registered mail, return receipt requested. Notices to xLabs will be sent to: Legal, xLabs pty ltd, PO box 45, Fitzroy, Victoria, Australia, 3065. Unless noted otherwise by Client, notices to Client will be sent to the email address used during registration or appearing on the applicable Order form.

13.4 Governing Law. This Agreement will be construed in accordance with and will be governed by the laws in force in the State of Victoria, Australia. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Victoria or the Commonwealth of Australia and any courts of appeal from these courts.

13.5 No Agency. The parties to this Agreement are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.

13.6 Waiver. No failure or delay by any party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.

13.7 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

13.8 Force Majeure. xLabs will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.

13.9 Publicity. Client agrees that xLabs may use Client’s company name and logo on EyesDecide’s client lists on the Platform, xLabs and EyesDecide website, and marketing materials and to promote xLabs and EyesDecide in any way.

13.10 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Client and xLabs with respect to the subject matter hereof and supersedes any prior communications (both written and oral) regarding such subject matter. xLabs expressly objects to any additional or conflicting terms proposed by Client in a Client purchase order or otherwise. No Client form shall modify the terms of this Agreement. This Agreement may only be modified or amended by a written amendment executed by both parties.

Questions, comments and requests in relation to this Agreement should be sent to support@eyesdecide.com, or via regular mail to:

xLabs pty ltd, PO Box 45, Fitzroy, Vic, Australia 3065 Attn: Legal Department

Last Updated: 22 May, 2017