Latest Version: 15 December 2020
Software as a Service Agreement
PLEASE READ THESE SOFTWARE AS A SERVICE TERMS AND CONDITIONS (“Agreement”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PSYCHOLATE (“SUPPLIER”, AS DEFINED BELOW). BY USING THIS WEBSITE AND THE SERVICES, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ORGANIZATION, COMPANY, OR ENTITY FOR WHICH YOU ACT (“Customer” or “you”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY SUPPLIER. REGISTRATION BY “BOTS” OR OTHER AUTOMATED METHODS ARE NOT PERMITTED. SUPPLIER’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THIS AGREEMENT IS CONSIDERED AN OFFER BY SUPPLIER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT.
Agreement Definitions
Customer: You or the organization, company, or entity for which you act and represent. You have the authority to bind Customer to this agreement. In case you represent an entity other than yourself that entity is legally established and active in its jurisdiction.
Supplier: Psycholate EPE is a limited liability company registered in Greece (GEMI registration 122003401000) with VAT number 800429120. Psycholate’s business address is Lykourgou 1, 10551, Athens. You may reach Psycholate by email at info@psycholate.com or by phone at +30 211 8004170.
Party or parties: Each of Supplier and Customer may hereinafter be individually or collectively referred to as “party” or “parties” respectively.
Services: Supplier’s hosted, internet accessible, cloud based services, allowing Customer to run hiring or research projects with pre-set IPIP questionnaires and/or with Customer created questionnaires or surveys, under the name TraitForward (formerly testil.io), made available to Customer on a subscription term basis under this agreement at https://traitforward.com or any other website address as may be notified to Customer (“Portal”).
Subscription Term: The period during which Customer will be granted by Supplier online access and use of the Services. Parties may renew the subscription term for a number of months or years.
Authorized User: Any Customer employee, contractor, agent or any other individual authorized by Customer to access and use the Services, via Customer’s purchased subscriptions, for the purpose specified herein. Customer is responsible for Authorized Users compliance with this Agreement. For the avoidance of doubt, an Authorized Affiliate is also an Authorized User, whereas an Authorized Client is not an Authorized User under this Agreement. Authorized Affiliate and Authorized Client have the meaning ascribed to them in the Data Processing Addendum (“DPA”).
Software: The object code version of TraitForward software and/or any software to which Customer is provided access as part of the Services, including any updates or new versions.
Documentation: The user guides, online help, training materials, and any other documentation made available to Customer regarding use of Services
Personal Data and Data Subject: have the meaning ascribed to them in the DPA.
Now, therefore, in consideration of promises, mutual covenants herein contained the parties agree as follows:
Article 1 — Grant
Subject to Customer’s compliance with the terms and conditions set forth herein, Supplier hereby grants to Customer a non-exclusive, non-assignable, limited right to access and use the Services, solely for Customer’s internal business operations, and up to the maximum number of Authorized Users documented herein, during the whole Subscription Term.
Article 2 — Authorized User Subscriptions
The maximum number of Authorized Users the Customer authorizes to access and use the Services shall not exceed the number of users allowed in the current subscription plan Customer has purchased.
Each user subscription corresponds to a unique Authorized User who will subscribe and use the Services by use of a password protected access to the Portal. Each Authorized User is responsible for maintaining the security of its account and password. Single login shared by multiple Authorized Users is not permitted. Customer shall maintain an up to date list of current Authorized Users and it shall permit, upon Supplier’s written request, the latter to audit the Services for any underpaid subscriptions. Any person performing such audit shall protect the Customer’s confidential information and abide by the Customer’s reasonable security procedures.
Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation.
Article 3 — Restrictions
Customer shall not:
- modify, alter, adapt, copy, translate, perform and display or create derivative works based on Software or Services or proceed to any action that may be properly characterized as copyright infringement by the applicable law.
- decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code for Software.
- Merge or bundle Software with other software
- Except as permitted under article 1 and 2, sell, license, lease, publish, display (publicly or otherwise), distribute or otherwise transfer or by any means make available –either directly or via another reseller- to a third party the Services.
- Duplicate, copy or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts (including the look and feel of the Services).
- Access, store, distribute or transmit any viruses or any material during the course of its use of the Services that is unlawful, harmful, defamatory, infringing, facilitates illegal activity, depicts sexually explicit images and/or causes damage or injury to any person or property.
Without prejudice to any other Supplier’s rights and remedies, Supplier reserves the right, without liability to the Customer, to disable Customer’s access to any material that breaches the restriction provisions of this clause.
Article 4 — Customer’s obligations
Customer undertakes to:
- provide reasonable information and assistance to Supplier to enable the Services to be rendered;
- Comply with all applicable local, state, national and foreign laws in connections with its use of the Services;
- Notify Supplier immediately of any unauthorized use of the Services;
- Designate a qualified employee as Customer’s administrator for the Services;
- Collect, input, update all Authorized Users data and material provided for use in connection with the Services.
Article 5 — Payment
Customer shall pay subscription fees to the Supplier for the Authorised Users subscriptions and order Services in accordance with this clause and the Subscription plan that has been selected by the Customer.
Customer shall pay all Supplier’s undisputed invoices within 30 days after Customer receives invoice. The Customer shall provide to Supplier valid and complete contact and billing details on the Effective Date. Unless expressly provided otherwise, fees are non-refundable.
The fees set forth in Schedule A are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future, and Customer shall pay any such tax (excluding taxes on Supplier’s net income) that Supplier may be required to collect or pay now or at any time in the future with respect to such fees.
Article 6 — Ownership of intellectual property
Software, with all its components, including the source code, Documentation, appearance, structure, organization, its preparatory design material etc, is protected by copyright and other intellectual property laws and treaties. Customer acknowledges that Supplier is the exclusive owner and owns all proprietary rights of TraitForward application, the Service, the Portal (including URL’s) and all intellectual property rights associated with, including software and copyrights, even if Supplier incorporates into the Portal suggestions made by Customer. Nothing in this Agreement grants Customer any ownership right in the Software or the Services. Customers may not transfer for value or use the Services for any commercial purpose other than that described in this Agreement.
Customer shall report promptly to Company any third party claim relating to the intellectual property rights in the Services or the Software or any associated Documentation, or in Supplier’s trade marks that comes to the Customer’s attention.
Article 7 — Content
Customer owns all content (including Personal Data) inputted by Customer and/or Authorized Users for the purpose of using the Services, as well as all content, including but not limited to a questionnaire or a survey or part thereof that the Services allow the Customer and/or Authorized User to create and distribute (“Content”). Customer is solely responsible for the legality, reliability, integrity, accuracy and quality of the Content and of its usage. Customer represents and warrants that Customer and/or Authorized User is not violating a) the intellectual property rights or copyrights of any party b) data protection and privacy laws, and c) ethics, including but not limited to professional ethics, by using and/or creating and/or distributing Content. It is expressly stated that the Customer may not intervene with the methodology of the assessment of each criterion, standard or quality, namely the Customer may not intervene with the set of questions under each criterion/standard/quality and their evaluation/score.
Supplier may suspend or terminate use of Services and this Agreement immediately upon receipt of any notice, which alleges that Customer and/or Authorized User has used Services for any purpose that violates any local, state, European or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, or that may violate data protection and privacy laws etc.
Customer agrees that Supplier may use Content in anonymized form for research purposes. The results of such research may be made public or shared with third parties for research purposes without remuneration. Supplier is responsible for the anonymization process, as well as to acquire the consent for the specific use of the Content (including Personal Data) of the Data Subject according to data protection and privacy laws.
Article 8 — Confidential information
Each Party may have disclosed or may disclose information that is confidential or proprietary in nature, whether explicitly designated as such or not, relating to a Party’s business and especially to details of the Services and/or Software, which to the extent previously, presently or subsequently obtained by the other Party is hereinafter referred to as “Confidential Information.”
Each Party agrees: (a) to hold Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information (including, without limitation, all precautions it employs with respect to its most confidential materials); (b) not to divulge any Confidential Information or any information derived there from to any third party, including, but not limited to, any affiliated entity (even if owned or controlled by the other Party); (c) to only use Confidential Information in its performance of the obligations under this Agreement.
Article 9 — Warranty disclaimer
Supplier makes no representations or warranties or conditions of any kind concerning the Services, the products or their use, the IPIP questionnaires, accuracy, function of the Services or the Software and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, Supplier and third parties disclaim all warranties, express, implied, or statutory, regarding the Services, the Software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Portal, the Services shall be deemed a warranty or guarantee for any purpose or give rise to any Supplier’s liability of third parties whatsoever. Customer acknowledges that it relied on no warranties or statements other than as may be set forth herein. For the avoidance of doubt, Customer is solely responsible to determine the standards/criteria/qualities of hiring, qualifications or any other standards of a survey or a questionnaire. Customer is solely responsible for the ultimate decisions relating to hiring or research and warrants that decision making shall not be based solely on the result of a questionnaire or a survey or any other product of the Services. For the avoidance of doubt, results of a questionnaire or a survey or any other product of the Services may, in no case, be relied upon after eighteen months.
Article 10 — Limitation of liability
Except as provided in the indemnity section herein below, Supplier shall not be liable to Customer or any third party for any incidental, indirect, exemplary, special or consequential damages, under any circumstances, including, but not limited to, lost profits, revenue or savings, loss of goodwill, even if licensor had been advised of, knew, or should have known, of the possibility thereof. Under no circumstances shall Supplier’s aggregate cumulative liability hereunder, whether in contract, tort, or otherwise, exceed the total amount of fees actually paid by Customer under this agreement during current. Customer acknowledges that the fees paid reflect the allocation of risk set forth in this agreement and that Supplier would not enter into this Agreement without these limitations on its liability.
Article 11 — Indemnification
Supplier shall defend, indemnify and hold Customer harmless, from and against any and all claims of infringement of a US patent, copyright or trademark, asserted against Customer by a third party, and arising out of Customer’s use of Services in accordance with the terms of this Agreement provided that Supplier shall receive by Customer: a) prompt written notice of such claim, b) the exclusive right to control and direct the investigation, defence and settlement of any such claim and c) all reasonable necessary Customer’s cooperation. If Customer’s use of Services is enjoined due to the type of infringement specified above, or if required by settlement, Supplier may: a) substitute Services with similar, b) make such necessary modifications/replacements to Services to permit non infringing usage by Customer, c) procure the right to continue use. However, Supplier shall have no liability whatsoever for any claim based on or arising out of: (i) use of Services in a manner or modification otherwise than as contemplated by this Agreement; or (ii) unauthorized Services use or use after notice of alleged or actual infringement.
Customer shall indemnify and hold harmless the Supplier against claims, liabilities, demands, damages, costs or expenses, including attorney’s fees and expenses, arising from or in connection with the use of the Services or Customer’s and/or Authorised User’s failure to comply with the Agreement.
Article 12 — Termination
The term of this Agreement is one or twelve months depending on whether annual or monthly billing has been selected by Customer. This agreement may continue for successive renewal terms, upon prompt payment of recurring yearly or monthly fees. Either party shall have the right at any time, by giving notice in writing or by stopping the automatic renewal of the service, to terminate this Agreement without liability to the other on the occurrence of any of the following events:
a. if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within 30 days after receipt of notice to rectify served on the defaulting party by the other party;
b. if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt;
c. if Customer engages in illegal activities; or
In the event of the expiration or termination of this Agreement for any reason:
a. all license granted shall immediately terminate;
b. each party shall return and make no further use of any intellectual property or other’s party’s items
c. Supplier may destroy or otherwise dispose of any of the Customer Data in its possession, especially those that contain personally identifiable information.
Article 13 — Notices
Any notice, request, instruction or other document to be given under this Agreement to any party hereunder by any other party hereunder shall be in writing and delivered personally, or sent by registered or certified mail, postage prepaid to each party’s addresses (or to such other address as a party hereto may hereafter designate in writing to the other party). Delivery as aforesaid of process or notice shall be sufficient and adequate to establish notice to the person served or notified. Any notice, request, consent and other communication to be given by a party under this Agreement shall be in the English language. Email notice will be permitted by Supplier if sent to the Customer’s account email address. Supplier’s address is: Psycholate, Lykourgou 1, GR-10551, Athens, Greece.
Article 14 — Relationship of the parties
The parties will at all times perform their respective obligations pursuant to this agreement as independent contractors. This agreement does not create any agency, partnership, joint venture, employment or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in respect whatsoever.
Article 15 — Entire Agreement
It is hereby declared that this Agreement constitutes the entire Agreement and contains the entire understanding between the parties hereto and with respect to the matters referenced to herein. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or modification of this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto.
Article 16 — Severability
In the event of any one or more provisions of this Agreement becoming invalid or unenforceable it shall not affect any of the other provisions hereof becoming invalid and unenforceable, and such other provisions shall be deemed to remain in full force and effect.
Article 17 — Waiver
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.
Article 18 — Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. The Schedules and the Data Processing Addendum to this Agreement constitute an integral part hereof.
Article 19 — Authentic text
The English language text of this Agreement shall be the only authentic text.
Article 20 — Force Majeure
Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.
Article 21 – Assignment
Customer may assign or transfer this Agreement in whole or part only with the prior written consent of Supplier, which consent shall not be unreasonably withheld or delayed. Upon written notification, Supplier may assign or transfer this Agreement in whole or part and all or part of the payments to the extent that Supplier’s obligations to Customer are not affected.
Article 22 – Governing law, Jurisdiction
Any dispute arising hereunder shall be exclusively construed in accordance with the laws of Greece without regard to principles of conflict of laws. For the purpose of this agreement, Customer consents to the personal jurisdiction and venue of the court located in Athens. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.
Article 23 – Other Documents
The following Other Documents attached hereto are incorporated and made a part of the Agreement:
- Schedule A- Services & Fees Schedule as mentioned in https://traitforward.com/pricing/
- Data Processing Addendum
