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Terms & Conditions

THESE TERMS OF USE (THE “TERMS OF USE”) GOVERN USER’S ACQUISITION AND USE OF THE SERVICES.  USER ACCEPTS THIS AGREEMENT BY SUBSCRIBING TO THE SOFTWARE.  IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “USER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY THEN SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

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DEFINITIONS

Affiliate

Of any entity means any firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with that entity.

 

Confidential Information

Means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of User includes, without limitation, User Data.  Confidential Information of PitchFit includes, without limitation these Terms of Use, the specifications, the Order Form, the Outputs (to the extent they do not comprise User Data) and information concerning one or more of the following relating to the business or technology of PitchFit: techniques, know-how, ideas, designs, inventions, principles, concepts, software, trade secrets, data models, databases, processes, algorithms, Intellectual Property Rights, business opportunities, business plans, customer confidential information, business finances, contracts, personnel, suppliers, management systems or IT systems.  For these purposes Confidential Information shall include, without limitation, any records, documents or files containing such Confidential Information.

 

Data Controller

Has the meaning given in the Data Protection Legislation.

 

Data Protection Legislation

The General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and any UK implementing laws, regulations and secondary legislation, as amended or updated from time to time and any successor legislation to the GDPR or UK implementing or equivalent laws (including without limitation the Data Protection Act 2018).

 

Intellectual Property Rights

Means any intellectual property right (or right in relation to Confidential Information) which arises at any time in any country, including without limitation, any and all of the following rights: patents, utility models, chip topography rights, copyright, database rights, moral rights, trade marks, registered designs, unregistered designs and rights to prevent unfair competition, in each case, whether the right is registered, applied for or unregistered.  The term includes, without limitation, any and all extensions and renewals of any such right from time to time.

 

PitchFit is a product provided by 

Axiom Eye Ltd (registered number 16571532) 

 

PitchFit Platform

The software, processes, tools, databases, algorithms and other items used, developed and maintained by PitchFit for the provision of the Services.

 

Order Form

An order form submitted by a customer of PitchFit when subscribing to the Services in order to create a binding order.

 

Output

A document, report or written recommendation (whether provided in a document, file or database or made available via a SaaS Service) containing information created for User in connection with the Services.

 

Services

Services provided on a software as a service basis which involves the use of any or all of the PitchFit Platform.

 

User Data

Data and information provided to PitchFit by or on behalf of User, through the use of the Services or otherwise, concerning User’s IT infrastructure and related matters such as applications, running costs, physical locations, security features and third party service provision.

 

 

  1. PITCHFIT RESPONSIBILITIES

    1. Provision of the Services.  PitchFit will: (a) provide the Services in accordance with these Terms of Use, (b) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of User Data, and (c) provide the Services in accordance with all laws and legally binding rules or regulations applicable to PitchFit's provision of the Services.

    2. Limitations on Scope of Services.  The Services will be limited to the scope explicitly authorised in an Order Form accepted, such as (without limitation) limits on the number of authorised logins and time limits for access to the Services. Unless use of the Services is expressly authorised under an Order Form User may not access or use the Services for any purpose whatsoever.

    3. Changes to Services and specifications.  PitchFit may make changes or updates to the Services and specifications including changes to infrastructure, security, technical configurations, application features or Outputs.  Any changes to the Services or specifications will not result in a material reduction in the level of performance or availability of the applicable Services or the content of the Outputs.

  2. CUSTOMER OBLIGATIONS

    1. Security, Licenses and Compliance. The User shall at all times: (a) be responsible for and ensure the compliance with these Terms of Use by all of User’s and its Affiliates’ personnel, contractors and third party service providers using or accessing the Services on User’s behalf (b) ensure that the login and password details issued to User from time to time in connection with the Services are kept secure, are each kept personal to one individual and not shared and are managed prudently (c) ensure that each login password is promptly changed after issue and when prompted by the SaaS Service (d) contact PitchFit immediately if User becomes aware that a login is or may be compromised (e) obtain and maintain all necessary licences and consents required for User’s use of the Services (f) comply with all laws and legally binding rules or regulations applicable to the use of the Services (g) not use the Services for any illegal or unlawful purpose, nor in a manner which constitutes a violation or infringement of the rights of any other party and (h) not use the Services in such a way as to create an unusually high or intense demand on any aspect of the Services at any given time.

    2. Usage Restrictions.  User will not: (a) make any Service or Output available to anyone other than as expressly permitted in an Order Form (b) use any Service or Output for the benefit of any third party unless expressly permitted in an Order Form (c) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein (d) attempt to gain unauthorized access to any Service or Output or to the PitchFit Platform or any related system or network (e) permit direct or indirect access to or use of any Services or Output in a way that circumvents any contractual usage limit (f) use any Services to access or use any of Intellectual Property Rights of PitchFit, except as expressly permitted under these Terms of Use, an Order Form, or the specifications (g) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof (g) copy Outputs except as permitted herein or in an Order Form or the specifications nor (h) disassemble, reverse engineer, or decompile any part of Services or access a Service to: (1) build a competitive product or service to any part of the Services (2) build a product or service using similar ideas, features, functions or graphics to those included in the Services or Outputs and/or (3) copy any ideas, features, functions or graphics of the Service or included in the Outputs.

  3. LIMITATIONS OF LIABILITY

    1. Financial Cap.  Subject to clause 3.3, each party’s maximum aggregate liability under these Terms of Use which arises from any and all acts, omissions or other circumstances which occur under or in connection with these Terms of Use, will be limited to the greater of: (a) the total Charges paid or payable to PitchFit by User for the provision of the Services or (b) ten thousand pounds sterling (£10,000).  

    2. Exclusion of Certain Liabilities.  Subject to clause 3.3 neither party shall be liable to the other for: (a) loss of profit (b) loss of revenue (c) loss of production (d) loss of business (e) loss of goodwill (f) loss of reputation (g) loss of opportunity (h) loss of anticipated savings (i) liability of User to third parties (other than in respect of any Intellectual Property Rights indemnity given under these Terms of Use) (j) loss or damage arising out of any failure by User to keep full and up to date back up copes of any computer program, configurations and data held or used by or on behalf of User or its Affiliates or (k) indirect or consequential loss.

    3. Liabilities that are Not Limited.  Nothing in these Terms of Use will operate to exclude or restrict one party’s liability to the other for: (a) death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (b) its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable (c) any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability (d) User’s obligation to pay the Charges (e) the obligations and indemnities in clause 4 or (e) infringement by a party of the other party’s Intellectual Property Rights.

  4. INTELLECTUAL PROPERTY RIGHTS

    1. No Transfer of IP.  PitchFit does not transfer any Intellectual Property Rights under the terms of these Terms of Use and, as between PitchFit and User, PitchFit retains all Intellectual Property Rights in the Services, the PitchFit Platform and any materials including the Outputs produced in the course of providing the Services (to the extent they do not comprise User Data).

    2. Use of User Data.  User hereby grants a perpetual, non-exclusive, worldwide license for PitchFit to use, amend and copy User Data to the extent necessary for the provision of the Services. 

    3. Incorporation of User Data.  In order that PitchFit can continue to develop the PitchFit Platform for the provision of services to other customer, User hereby agrees that elements of User Data may be incorporated in the PitchFit Platform.  PitchFit undertakes that all extracts of User Data which become incorporated in the PitchFit Platform will be anonymised so that such data will not include User specific names, markers or identifiers or any serial numbers or IP addresses of particular hardware, software or storage devices held by User.

    4. Ownership interests in User Data.  The Intellectual Property Rights in User Data provided to PitchFit shall remain the property of User.    Anonymised User Data incorporated in the PitchFit Platform in accordance with clause 5.3 shall not be considered Confidential Information of User but shall become Confidential Information of PitchFit and any Intellectual Property Rights arising from incorporation of that anonymised User Data into the PitchFit Platform shall vest in, and remain the property of, PitchFit

    5. PitchFit Indemnity. Subject to compliance by User with clause 4.7, PitchFit shall indemnify User for all losses, claims, liabilities, expenses and costs which User may incur to a third party as a result of the use of the Services by User in accordance with the terms of these Terms of Use, being found to infringe the Intellectual Property Rights of any third party.

    6. User Indemnity. Subject to compliance by the PitchFit with clause 4.7, User shall indemnify PitchFit for all losses, claims, liabilities, expenses and costs which PitchFit may incur to a third party as a result of the possession or use by PitchFit of any User Data in accordance with the terms of these Terms of Use, being found to infringe the Intellectual Property Rights of any third party.

    7. Management of Indemnity Claims.  The indemnities set out in clauses 4.5 and 4.6 shall only have effect if the party making a claim under the relevant indemnity (“Claimant”): (a) as soon as reasonably possible informs the other party (“Payer”) of any claim which the Claimant receives or which it becomes aware that it may receive (b) makes no admission as to liability in respect of any claim or potential claim without the prior written consent of the Payer (c) allows the Payer (at the cost of the Payer) to have sole conduct and control of the defence and/or settlement of any claim or potential claim and (d) provides the Payer with such support, information and assistance as it may reasonably request in connection with the investigation, defence and/or settlement of any claim or potential claim. The Payer shall on request, refund the reasonable and demonstrable expenses of the Claimant incurred in complying with its obligations pursuant to this clause 4.7.

  5. TERM AND TERMINATION

    1. Provisions Surviving Termination.  Following termination of these Terms of Use for whatever reason: (a) the following provisions will continue in force: Clauses  4 (Limitations of Liability), 5 (Intellectual Property Rights), 6 (Term and Termination), 7 (Confidentiality), 8 (General Provisions) together with any other provisions which expressly or impliedly continue to have effect after termination of these Terms of Use and (b) all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to termination.

  6. CONFIDENTIALITY

    1. Obligation of Confidentiality. The Receiving Party to any Confidential Information will, subject to clauses 6.2, 6.3 and 6.4: (a) keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by these Terms of Use or otherwise agreed (b) use the Confidential Information only to the extent necessary for the performance of its obligations and exercise of its rights under these Terms of Use or as specifically authorised under these Terms of Use (including without limitation for the purposes set out in clause 4.3) (c) only make such copies, notes, reports, analyses and recordings (in whatever media) that contain or are based on Confidential Information as are reasonably necessary for the purpose of complying with its obligations and exercise of its rights under these Terms of Use (including without limitation for the purposes set out in clause 4.3) and (d) keep the Confidential Information safe and secure and apply security measures as good as those the Recipient operates in relation to its own confidential information.

    2. Permitted Use Exception. The Receiving Party may disclose Confidential Information: (a) to such of its officers, employees and contractors who need access to that Confidential Information for the purpose of complying with its obligations under these Terms of Use (b) in the case of User to (1) User’s Affiliates which are expressly permitted to benefit from the Services in the Order Form and (2) its (and their) third party IT suppliers and advisors for the purposes of User and any such Affiliates permitted to receive the benefit of the Services, provided in each case that User shall ensures that each such Affiliate and third party supplier and/or advisor keeps such Confidential Information confidential and does not use such Confidential Information for any purpose other than for the benefit of the business of User (and the businesses of any User’s Affiliates which is expressly permitted to benefit from the Services in the Order Form).   

    3. Legal and Regulatory Exception.  The Receiving Party may disclose Confidential Information to the extent required by any law or legally binding rules or regulations applicable to it.  Where reasonably practicable and lawful the Receiving Party will give notice to the Discloser in advance of such disclosure, will consult with the Disclosing Party as to the content, purpose and means of disclosure and will seek to make such disclosure subject to obligations of confidence consistent, so far as possible, with the terms of this clause 6.

    4. General Exception. The Receiving Party’s obligations under this clause 6 will not extend to Confidential Information which: (a) was already lawfully in the Receiving Party’s possession prior to disclosure by or on behalf of the Disclosing Party (b) has been received from a third party who did not acquire it in confidence and who is free to make it available to the Receiving Party without restriction (c) was independently developed by the Receiving Party without any breach of these Terms of Use or (d) at the time of disclosure was in the public domain or subsequently enters into the public domain without default of the Receiving Party.

  7. GENERAL PROVISIONS

    1. Force Majeure.  A party will not be in breach of these Terms of Use or otherwise liable to the other party for any failure to perform or delay in performing its obligations under these Terms of Use to the extent that such failure or delay is due to an act of war, hostility, or sabotage, act of God, pandemic, electrical or internet or telecommunication outage that is not caused by the obligated party, government restrictions (including the denial or cancelation of any export, import or other license) or other event outside the reasonable control of the obligated party.  If such an event occurs, the party affected will: (a) as soon as reasonably practicable after becoming aware of it give the other party written notice of the occurrence, anticipated duration and impact of the event (b) use reasonable endeavours (provided that such obligation shall not require the engagement of third parties) to mitigate the effects of the event and to continue to perform the affected obligations notwithstanding the occurrence of the event and (c) continue to perform all of its obligations under these Terms of Use the performance of which are not affected by the event.

    2. Data Protection.  The parties acknowledge that for the purposes of the Data Protection Legislation the only personal data that should be provided by or on behalf of User in the use of the Services is contact information for User and its users.  Such contact information is collected by PitchFit as Data Controller and used in accordance with PitchFit's privacy policy from time to time. Each party shall, in respect of each Service: (a) provide such help and co‑operation as is reasonably requested by the other to enable compliance with the Data Protection Legislation and (b) without prejudice to the express provisions of this clause 7.2 at all times comply with its obligations under the Data Protection Legislation. 

    3. Assignment.  These Terms of Use is personal to User and User will only be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under these Terms of Use if it has obtained the prior written consent of PitchFit to do so, such consent not to be unreasonably withheld.  PitchFit will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under these Terms of Use.

    4. Severance.  If any term of these Terms of Use is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from these Terms of Use and this will not affect the remainder of these Terms of Use which will continue in full force and effect.

    5. Variation.  No variation to these Terms of Use will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.

    6. Rights of Third Parties.  The parties do not intend that any term of these Terms of Use will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person but agree that the losses of any of User’s Affiliates expressly permitted to benefit from the Services in the Order Form shall be recoverable by User (subject to clause 3) as if they were losses of User itself.

    7. Governing Law and Jurisdiction.  These Terms of Use and any non-contractual obligations arising out of or in connection with it will be governed by the law of England.  Each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with these Terms of Use (including in relation to any non-contractual obligations).

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