Terms and conditions

This Agreement is hereby entered into between the Customer cited on and executing the Order Form (“the Customer”) and DataEQ Consulting executing the Order Form as the service provider party (“Service Provider”), effective as from the date specified in the Order Form.

These Terms and Conditions, together with the Order Form, (which is hereby incorporated by reference into these Terms and Conditions), constitutes the complete contract between the Parties with respect to the transaction (“the Agreement”).

SERVICES OVERVIEW

DataEQ Consulting, as the Service Provider party, shall, subject to what is specifically provided in the Order Form, provide the Customer with services that help the Customer to manage and measure public perception of the Customer’s brand over a period in a digital world, including social networks (“the Services”). DataEQ Consulting processes data using a proprietary mix of algorithms, human crowd sourcing (“Crowd”) and artificial intelligence to determine relevance, sentiment, topics, themes and trends. The Services are intended to enable the Customer to measure social sentiment as a lead indicator of the health and status of its brand in the public eye and determine causality of sentiment (i.e. the factors that are causing or influencing public opinion in any given period).

DataEQ Consulting’s Services are also used to measure the performance of the Customer’s brand against the brands of its competitors, if and as specified in the Order Form. As part of such measurement, DataEQ Consulting shall consider volume of Mentions, public engagement with the Customer’s brand and Contributors (i.e., human-verified and AI processed), Sentiment and Topic analysis metrics.

DEFINITIONS
1. “Agreement” means this agreement between the Service Provider and the Customer, incorporating both the Order Form and any annexures thereto as well as the terms and conditions set out in this document.
2. “Customer” means the person, firm or company whose name appears on the Order Form, who has engaged the Service Provider to render the Services.
3. “Customer Data” means any information furnished to the Service Provider by the Customer which is or is intended to be processed by computer or manually, to be analysed, viewed and assessed by the Service Provider and which specifically includes but may not be limited to Personal Data, but which excludes Raw Data or Public Data collected by the Service Provider and/or the Customer in provision of the Services and/or through the DataEQ API.
4. "Commencement Date" means the date stipulated in the Order Form being the date on which the Services will commence.
5. “Contributors” means the various individuals engaged by DataEQ to utilise the DataEQ “Crowd” platform (“Crowd”) for purposes of enriching the Data by way of analysing and processing the relevant Mentions content provided by DataEQ (e.g. Mentions made by members of the public about the Customer and/or about the Customer’s competitors),and/or processing by third party artificial intelligence (“AI”) research service providers, in order that the Enriched Data and/or reports provided to the Customer are comprehensive and contain useful insights suited to the Customer’s requirements (as communicated by the Customer to the Service Provider, from time to time).
6. “Data” means any data supplied, stored, collected, collated, accessed or processed by or for the benefit of the Customer, including Personal Data as defined under the Data Protection Laws, and any other jurisdiction where the Services are provided.
7. “DataEQ” means DataEQ (Pty) Ltd (Registration Number 2011/000295/07), who the Parties acknowledge is the owner and licensor of the DataEQ Proprietary Materials and the DataEQ Products.
8. “DataEQ Analyse” means the DataEQ online monitoring software product, as more fully described in Annexure A to the Order Form, and as may be modified, updated, upgraded or revised by DataEQ from time to time.
9. “DataEQ API” means the DataEQ application programming interface, as modified, updated, upgraded or revised by DataEQ from time to time.
10. “DataEQ Engage” means the DataEQ Product, as more fully described in Annexure A to the Order Form and as modified, updated or revised by DataEQ from time to time.
11. “DataEQ Explore” means the DataEQ Product, as more fully described in Annexure A to the Order Form and as modified, updated or revised by DataEQ from time to time.
12. “DataEQ Products” means those DataEQ products which are offered by DataEQ Consulting to the Customer in terms of this Agreement, as more fully described in Annexure A to the Order Form and which may include DataEQ Analyse, DataEQ Explore, DataEQ Engage and any other services and/or products that DataEQ Consulting may from time to time provide to the Customer.
13. “DataEQ Proprietary Materials” includes all websites, programs, software, source codes, methodologies, products, data, documents and any other materials licensed to DataEQ Consulting by DataEQ in order to provide the Services (including without limitation, the DataEQ Products and DataEQ API, where applicable).
14. “Data Protection Laws” means any statutes, laws, legislation, regulations or binding policy, code of any government authority that relates to the security and protection of personally identifiable information, data privacy, trans-border data flow or data protection in force from time to time in the Republic of South Africa, including but not limited to The Protection of Personal Information Act 4 of 2013 (“POPIA”), Electronic Communications and Transactions Act 25 of 2002, Promotion of Access to Information Act 2 of 2002, and/or any equivalent legislation of other jurisdiction(s) where Personal Information is being processed or where a party is obliged to comply with, including, where applicable, EU Data Protection Laws [General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016] on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, as amended, replaced or superseded from time to time.
15. “Data Subject” has the meaning ascribed to it in POPIA to whom the specific Personal Information relates.
16. “Deliverables” shall mean the outcome of the Services delivered to the Customer by the Service Provider, namely the insights analysis, and may also include analyst reports (if set out in the Order Form), but in all instances excludes the Raw Data which is being reported on and/or analysed itself and the Enriched Data (which is subject to a licence in terms of clause 9).
17. “Direct Message/s” means the messages, which may include Personal Information, sent by customers of the Customer and other individuals/ third parties directly to the Customer using the channels provided or made available by the Customer for such purpose (such as, inter alia, inbox functionality on social media platforms, such as Twitter, Facebook, Instagram etc, or via bots or artificial intelligence, email or SMS).
18. “DM Authorisation” means the authorisation given by the Customer on both its social media accounts and to the Service Provider in terms of these Terms and Conditions which permits the Service Provider to access the Customer’s Direct Messages, which access shall be subject to the terms as set out in clause 3.20 below.
19. “Enriched Data” means Raw Data (and more specifically the Mention) that has been analysed by the Contributors, the purpose of which is to enrich the Raw Data in accordance with the Customer’s requirements as specified in the Order Form.
20. “Essentials” means the product tier of DataEQ that refers to the sourcing of the Raw Data, which includes a relevance check.
21. “Group” means any holding, subsidiary and/or affiliated companies of the Service Provider including DataEQ Limited (incorporated in the United Kingdom) and DataEQ Proprietary Limited (incorporated in South Africa).
22. “IP Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets), and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
23. “Mentions” means any individual comment by an individual author related to the Customer (or its competitors, the case may be) which are monitored, assessed and/or analysed as part of the Services.
24. “Order Form” means the order form (also referred to as the Cost Estimate issued by the Service Provider) and accepted by the Customer describing, inter alia, Services, the term of this Agreement, the Customer’s information, and the applicable fees payable by the Customer to the Service Provider in respect of the Services.
25. “Parties” means the Customer and the Service Provider and “Party” means either one of them as the context requires.
26. “Personal Information” or “Personal Data” means data/information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to –
  1. information relating to the race, gender, sex, pregnancy, marital status, national, ethic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
  2. information relating to the education or the medical, financial, criminal or employment history of the person;
  3. any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person;
  4. the blood type or any other biometric information of the person;
  5. the personal opinions, views or preferences of the person;
  6. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or
  7. further correspondence that would reveal the contents of the original correspondence;
  8. the views or opinions of another individual about the person; and
  9. the name of the person if it appears with other personal data relating to the person or if the disclosure of the name itself would reveal information about the person.
27. “Public Data” means information which is generally available to the public and which may be collected by the Service Provider and/or any information furnished to the Service Provider by the Customer, as the case may be, which is or is intended to be processed by computer or manually, to be analysed, viewed and assessed by the Service Provider, and which is not protected from disclosure to third parties.
28. “Raw Data” means data relating to the Customer and/or Mentions that the Service Provider collects from public sources, including but not limited to X (previously known as Twitter), Meta, LinkedIn, Google, social media sites, online press sites, blogs and blog comments, mainstream news sources, and forums (and such other sources that may be included from time to time), which Raw Data is then enriched and structured by the Service Provider and/or accessed by the Customer as part of the Services and may include Direct Messages (as defined).
29. “Sentiment” means the positive, negative or neutral sentiment towards the relevant brand, as determined by the Service Provider.
30. “Sentiment Analysis” refers to the process used by DataEQ using its analytics tool “Analyse” which uses a combination of crowd-sourced human intelligence and artificial intelligence to understand the Sentiment of authors as expressed on Raw Data source platforms.
31. “Segments” means, depending on the context, the stage of the Customer journey, the Customer channel, the risk factor, or some other bounded set of classifications associated to the relevant Mentions as derived by the Contributors.
32. “Services” means the services to be provided (and, to the extent applicable, the DataEQ Products to be delivered) to the Customer by the Service Provider, as stipulated in the Order Form.
33. “Service Provider” means DataEQ Consulting (Registration number: 2015/239183/07), a company incorporated in accordance with the laws of South Africa, who is a licensee of the DataEQ Proprietary Materials and DataEQ Products and the service provider party in terms of this agreement;
34. “Social Media User Engagement” refers to access to DataEQ’s ticketing and priority tool known as DataEQ Engage, which allows the Service Provider’s Customers to respond to queries, comments or questions from the public through social media channels.
35. “Topics” means the topic associated to the relevant Mentions as derived by the Contributors, based on the data sample size variations and parameters that are automatically set by DataEQ’s system.
BASIS OF AGREEMENTed the Service Provider to provide the Services stipulated in the Order Form and to be rendered in accordance with the terms of this Agreement.
1. The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Service Provider which is not set out in this Agreement.
2. Unless specifically and expressly otherwise agreed in writing between the Parties, this Agreement applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, in respect of the Service Provider’s provision of the Services.
3. The Customer acknowledges and accepts that DataEQ is the owner and licensor of the DataEQ Proprietary Materials and DataEQ Products which are under licence to the Service Provider, and that certain undertakings and benefits of this Agreement are given in favour of both the Service Provider and DataEQ. The Parties agree that where any provision of this Agreement constitutes a stipulations for the benefit of a third party in favour of DataEQ as the Licensor of the DataEQ Products, and DataEQ shall be entitled at any time to accept such benefit on written notice to the Parties, notwithstanding that DataEQ is not a party to this Agreement and that DataEQ shall have no liability to the Customer in terms of this Agreement. DataEQ Consulting, as the Service Provider, shall be liable to the Customer on the terms set out in this Agreement.
4. Except to the extent otherwise stated in the Order Form, any estimate, offer or quote contained in the Order Form shall only be valid for a period of 30 days from its date of issue.
5. This Agreement will continue to bind the Customer and the Service Provider until the expiry or termination date stipulated in the Order Form, unless terminated earlier in accordance with the terms of this Agreement. Those provisions that are intended to survive the termination of the Agreement will continue to be effective.
PROVISION OF SERVICES AND USE OF DATAEQ PRODUCTS
1. The Service Provider shall supply the Services with due care, skill and diligence and from the Commencement Date for the period specified in the Order Form, unless suspended or terminated earlier in accordance with this Agreement (“the Term”). The Service Provider’s rights of suspension are set out in clause 3.13 (suspension for non- compliance with X/Twitter Terms), clause 4.5 (suspension late payment) for and clause 5.4 (suspension for exceeding Mention volume limits) below.
2. The Order Form will stipulate the applicable DataEQ Product and also whether or not the DataEQ API is included. Reference to the DataEQ API in these Terms and Conditions shall only apply to the Customer to the extent that the DataEQ API is applicable to that Customer. In certain instances, the Customer may, after the Commencement Date, request that DataEQ API access be included, in which event, those provisions relating to the DataEQ API shall then automatically apply. Where the Order Form does not specify that the API is included in the Services, the provisions relating to API use shall not be applicable.
3. Unless an Order Form specifically and expressly excludes DM Authorisation, the Customer authorises access to its Direct Messages and the provisions relating to Direct Messages in these Terms and Conditions shall automatically apply to the Customer. In certain instances, the Customer may, after the Commencement Date, provide DM Authorisation, in which event, the provisions set out in clause relating to DM Authorisation shall then automatically apply.
4. Mutual Obligations: The Parties will cooperate and do all that is necessary in a timely and professional manner and without any unnecessary delays to facilitate the delivery of the Services and give effect to the rights and obligation set out in each Order Form.
5. The Service Provider further grants to the Customer a non-exclusive, limited, non-assignable, non-transferable sub-licence to use the DataEQ Products (as specified in the Order Form) via the website www.DataEQ.com (or such other domain as DataEQ may notify the Customer in writing from time to time) and the DataEQ API (if, applicable as set out in the Order Form), for the Term and specifically for the purpose of enjoying the use and benefit of the Services, provided that the Customer complies with these Terms and Conditions, and the Privacy Policy as set out on the DataEQ website and the Customer shall in receiving the Services and accessing the DataEQ platform, be bound by those terms and by terms of third parties (as referred to in the Privacy Policy), which incorporates amongst other things, the Customer’s rights in respect of their data from such third party services.
6. Third Party Services: Where Customers and/or users have chosen to connect their social network accounts to a third-party service such as Google, You Tube etc, Customers and users, are agreeing to provide data under the respective terms and privacy policies of those third party service providers, to which the Customer is bound. In respect of Google, these terms are available at (https://policies/google.com/terms). Certain features of the DataEQ platform integrate with YouTube API Services. By using these YouTube-related features, the Customer acknowledges and agrees that it (and it’s users) are also bound by the YouTube Terms of Service, available at: https://www.youtube.com/t/terms. The Customer’s use of YouTube functionality within the DataEQ platform is subject to both these Terms and Conditions and the applicable YouTube terms and policies.
7. All use of the DataEQ Product(s) and the DataEQ API (where applicable) and content, documentation, code, and related materials made available to the Customer is subject to and must comply with this Agreement.
8. In relation to the DataEQ API, the Customer is required to obtain prior written approval from DataEQ for its intended use of the DataEQ API, which approval shall not be unreasonably withheld.
9. The provision of the DataEQ API service is dependent on the uptime of its third-party providers. The Service Provider shall not be responsible for any interruptions and/or outages of the provision of the DataEQ API service due to such third-party providers. The Service Provider will use its best efforts to –
  1. notify the Customer in the event of an outage caused by a third-party provider; and
  2. restore service to an affected Customer.
10. Where the Customer accesses any third-party services via the DataEQ platform, which includes the processing of Raw Data through DataEQ Products, the Customer is responsible for ensuring that it does so in compliance with the law, and such use shall be governed by both the terms of this Agreement and the terms of use and privacy policies of such third-party services (including but not limited to X (previously known as Twitter) terms of services). DataEQ’s agreement with X (“the X Agreement”) is material and integral to the Service Provider being able to render the Services. In terms of the X Agreement, the Service Provider is obliged to ensure compliance by all end users (which in this instance would include the Customer) with X’s Terms of Service located at http://twitter.com/tos, the X privacy policy located at http://twitter.com/privacy and the X rules located at http://twitter.com/rules (hereinafter collectively referred to as the “X Terms”). The Customer is therefore obliged to comply with and undertakes to the Service Provider that it shall use its utmost and best endeavours to ensure its adherence to the X Terms.
11. The Customer (as an end user of the Service Provider) acknowledges that, with regards to X content specifically as provided by, or access by the Customer through DataEQ’s platform, such data belongs to Twitter and whilst the Customer is entitled to download Raw Data for purposes of analysis and formulating its insights during the term of the Agreement, neither the Service Provider nor the Customer at any time obtains ownership of the Raw Data and shall therefore be obliged to delete such Raw Data on termination for whatsoever reason of the Agreement. The obligation to delete such Raw Data is a Service Provider obligation to X which obligation also extends to the Service Providers users, including the Customer.
12. In terms of the X Terms, the Customer (as an end user of the Service Provider) is strictly prohibited from aggregating, caching or storing location data or any geographic information contained in X information on a standalone basis and may only do so conjunction with a tweet to which it is attached.
13. In terms of the X Terms, the Customer (as an end user of the Service Provider) is prohibited from displaying tweets in or on a publicly accessible website or application, unless done in strict compliance with the X Terms Display Requirements and other relevant provisions as set out in the X Terms.
14. The Customer warrants to the Service Provider and to DataEQ that it will comply with clauses 3.6 to 3.13 and fully indemnifies the Service Provider and DataEQ, its directors, members and representatives for any losses of whatsoever nature caused by the Customer’s breach of any of the warranties set out in this clause 3.Without prejudice to the Service Provider’s rights in terms of this Agreement, it shall also be entitled to suspend Services where there is a suspected breach or non-compliance by the Customer with its undertakings set out in clauses 3.6 to 3.13.
15. The Customer acknowledges that it shall not obtain ownership of or licence to any data that is proprietary to DataEQ or DataEQ Consulting or third party, including any Personal Data, obtained through the use of the Services. The Customer acknowledges that it shall not obtain ownership of any Intellectual Property rights in the DataEQ Products. The Customer shall only own the Deliverables that it derives from the Raw Data through the provision of the Services.
16. The Customer shall for the duration of the Term, have access to all Raw Data to which it is entitled to obtain under this Agreement and in relation to the Term, which right of access shall terminate on the termination for whatsoever reason of this Agreement.
17. If after the Term, the Customer wishes to access any Raw Data relating to a particular period of the Term, the Service Provider shall be entitled to charge the Customer separately for access to such Raw Data in accordance with its usual rates, due to the fact that the Service Provider would incur costs in accessing such Raw Data on behalf of the Customer.
18. In the event of the Agreement being terminated by either party, the Customer undertakes to immediately delete all Raw Data and/or Personal Data cached, subject to its right to retain the Deliverables provided in terms of this Agreement.
19. The Customer shall be granted fair use of the DataEQ API. The Service Provider reserves the right to limit the number and/or frequency of API requests in its sole discretion. Should the Service Provider be of the opinion that the Customer has attempted to exceed or circumvent the rate limits, access to the DataEQ API may be temporarily or permanently blocked by the Service Provider, with reasonable prior written notice, and without the Service Provider becoming liable to the Customer or any other third party.
20. DataEQ reserves the right to make changes to the DataEQ Products and/or the DataEQ API from time to time. In the event of changes which may interrupt access, the Service Provider shall use its best efforts to notify the Customer at least 5 (five) business days before such changes go live. Support for older versions of the DataEQ API will not be guaranteed by the Service Provider.
21. The Customer undertakes and warrants to the Service Provider that in respect of its Direct Messages:
  1. the Customer grants all necessary consents for access to Direct Messages on its relevant social platforms.
  2. the Customer fully understands the implications of giving such authorisation, including that the Customer consents to the Service Provider accessing and processing Direct Messages in accordance with the provisions of these Terms and Conditions.
  3. the Customer acknowledges that Direct Messages (as part of Raw Data), would are stored in a secure database and are viewable by the Customer’s users and the Service Provider and its staff in an anonymized form via the DataEQ’s Analyse and DataEQ Engage platforms, with Personal Data redacted and that depending on the Customer’s specific account configuration, a sample of Raw Data (which may include Direct Messages), may be sent (also in redacted form) to Contributors.
  4. the Customer shall be responsible for all users who it has permitted to have access to its Direct Messages and shall procure that it and its users shall at all times adhere to the data protection provisions set out in these Terms and Conditions, and to applicable Data Protection Laws.
  5. that access to the Customer’s Direct Messages shall continue until the termination of this agreement, unless an earlier express written and signed request to disable such access has been received and acknowledged in writing by the Service Provider.
22. The Customer undertakes and warrants to the Service Provider that in relation to any Raw Data and/or Personal Information in any way obtained from the Service Provider pursuant to the Services, it shall not, and shall not permit any other party to –
  1. sell or license or grant rights to such Raw Data, Enriched Data, and/or to Personal Information so obtained, to any third parties;
  2. use such Raw Data, Enriched Data, and/or Personal Information so obtained for commercial purposes (other than for the specific purpose provided for in the Order Form);
  3. disseminate such Raw Data, Enriched Data, and/or Personal Information;
  4. sell access to such Raw Data, Enriched Data, and/or Personal Information;
  5. permit unauthorised access to such Raw Data, Enriched Data, and/or Personal Information;
  6. use such Raw Data and/or Enriched Data, including specifically Personal Information, in any way that violates this Agreement or Data Protection Laws, or which infringes the rights of any third party and will not authorise or permit any other person to do so; and/or
  7. use such Raw Data, Enriched Data, and/or Personal Information so obtained for any negative or unfairly discriminatory purposes or to harass and/or target individuals and/or groups.
23. The Customer is responsible for maintaining the confidentiality of any account and password assigned to it by the Service Provider (where applicable) in respect of DataEQ Products and/or DataEQ API and for preventing access to any computer used by the Service Provider to prevent unauthorised access to such account. The Customer accepts responsibility for all activities that occur under its account or password. The Customer shall take all necessary steps to ensure that the password is kept confidential and secure and shall inform the Service Provider immediately if it has any reason to believe that the Customer’s password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
24. The Service Provider makes certain disclosures about the Services, which are based on the nature of the Services and the data obtained by the Service Provider, which disclosures are intended to qualify and limit any and all warranties, undertakings and/or representations given by the Service Provider in relation to the Services. These disclosures are:-
  1. That due to the Raw Data being third party user data, the Service Provider simply accesses Raw Data as it is found at the source/s and the Service Provider is not able to guarantee or warrant precise levels of accuracy of the Raw Data collected and assessed, as part of the Services;
  2. That the Service Provider provides the Services based on its processes of analysis of the Raw Data but that it does not give any guarantees or undertakings that the Raw Data gathered and the insights and information provided to the Customer as part of the Services (including the Enriched Data) will have certain outcomes if applied by the Customer in practice, as these will be business decisions of the Customer, which the Service Provider has no control over and therefore cannot be held responsible for;
  3. That the Service Provider accesses the Raw Data from the sources referred to in clause 1.28 above but that in no way can the Service Provider guarantee 100% coverage of the internet, or the Raw Data sources i.e. it will not Data Track 100% of the Mentions published in such sources;
  4. That due to the public nature of the Raw Data, the Service Provider cannot and does not guarantee that the Customer has exclusive access to, and use of, the Raw Data and/or Enriched Data (although the Customer will have non-exclusive use of its Enriched Data in accordance with the licence granted to it in clause 9); and
  5. The Service Provider also has no control over any decisions made and/or actions taken by the Customer’s competitors who may also make use of the Service Provider’s Services and the DataEQ Products and therefore the Service Provider will not be liable therefor.
CHARGES AND PAYMENT
1. The fee for the Services (which includes the royalty for the licence granted under clause 3.3) is set out in the Order Form and, unless indicated otherwise, is quoted in ZAR (South African rands) and is exclusive of VAT, sales taxes and/or any other applicable taxes.
2. The Customer shall pay the fee(s) for the Services in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where the fee(s) is payable in instalments (as stipulated in the Order Form), the Customer shall pay each instalment in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where no payment terms are stipulated in the Order Form, payments shall be due within 30 (thirty) calendar days from the date of invoice.
3. All payments due to the Service Provider must be made without deduction or set-off and of immediately available funds.
4. Interest on all overdue payments under this Agreement shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% above the prime rate, which interest shall be calculated daily, compounded monthly and payable by the Customer to the Service Provider on demand.
5. Without derogating from the Service Provider’s right to terminate the Agreement in accordance with the provisions of this Agreement, in the event of any late payments, where the Service Provider has requested payment from the Customer and payment is still outstanding 7 (seven) calendar days from the date of such request, the Service Provider shall be entitled without further notice to suspend the Services and any access to the DataEQ Products and DataEQ API (where applicable) and shall not be liable to the Customer or any other party in relation to such suspension as a result of the Customer’s late payment.
6. All fees and charges for any other services provided by the Service Provider , including access to data after the Term, or for travel costs or disbursements, which are not specifically included in the Order Form will be quoted separately to the Customer and will be paid to the Service Provider by the Customer as agreed in writing between the parties and failing such agreement, within 30 (thirty) calendar days following the date of invoice.
MENTIONS VOLUME LIMIT AND OVERAGE CHARGES
1. The Order Form will stipulate the maximum number of Mentions per brand per month, which are based on volumes estimated as at the Commencement Date.
2. The Customer acknowledges that the Service Provider is not able to predict exact data volumes and from time to time, and/or on the occurrence of a specific event/s, Mentions volumes may spike causing the Customer’s usage to exceed the agreed limits set out in the Order Form.
3. In the event of the maximum being reached, the Customer may opt to upgrade their account for the month to a higher volume limit, or alternatively to purchase additional data volume bundles to over the overage. The Customer may also elect to manage its overages manually, in which case the Customer would be required to sign off an additional order as soon as the Customer has received notice from the Service Provider that volumes maximum has been reached. Should the Customer fail to conclude such additional order form, the Service Provider shall be entitled to immediately suspend the Customer’s access to the DataEQ Products, without penalty to the Customer, until an agreement between the parties in respect of the overages has been concluded.
4. If, during any month, the maximum volumes of Mentions have not been reached, these do not carry over to the following month.
CONFIDENTIALITY
1. Each Party hereby acknowledges that, during the course of its relationship with the other Party, information or records belonging to the other Party which are either identified as being confidential or which would reasonably be regarded as being of a confidential nature, in whatever format (“Confidential Information”), may be disclosed to it.
2. Subject to clause 6.3 below, each Party undertakes that it (a) shall keep the Confidential Information strictly confidential and will not disclose any of it to any person whatsoever; and (b) shall not, directly or indirectly, use the Confidential Information for any purpose other than that envisaged by this Agreement.
3. Each Party shall be entitled to disclose Confidential Information (a) to its employees, parent or sister companies and/or professional advisors solely to the extent strictly necessary for purpose of rendering the Services and provided that, prior to such disclosure, the receiving person is bound by a written confidentiality undertaking similar to that set out in this clause 6; and (b) if and only to the extent that doing so is required in order to satisfy an order of a court of competent jurisdiction or to otherwise comply with the provisions of any law or regulation in force at the time.
4. The provisions of this clause shall not apply to information to the extent to which it can be shown to be part of the public domain (other than as a result of a breach hereof), is Public Data, or is acquired from a third party (other than as a result of a breach hereof).
CUSTOMER DATA
1. The Customer acknowledges that in addition to Raw Data from the sources as set out in clause 1.28, the Service Provider may also be furnished with and/or have access to Customer Data, which may include Personal Data and the Customer hereby consents to the use of the Customer Data for the purpose of performing the Services.
2. Where the Customer itself provides any Customer Data to the Service Provider, the Customer is obliged to and undertakes to remove all Personal Data from such Customer Data prior to supplying such Customer Data to the Service Provider.
3. The Service Provider will process the Customer Data in accordance with the Services (as described in the Order Form), in compliance with clause 8 below.
4. The Customer acknowledges and agrees that the Service Provider is not required to and does not check or verify Customer Data provided to it and will not be responsible for any incorrect or inaccurate Customer Data provided to it.
5. The Service Provider shall not be liable for any errors, or omissions in any Customer Data provided to it by the Customer or for any losses resulting from the Customer’s failure to comply with its undertakings set out in this clause 7.
PERSONAL INFORMATION AND DATA PROTECTION
1. The Parties acknowledge that the Data they receive from the other party and/or through the Services may include Personal Information. As referred to in clause 7 above, the Service Provider through providing the Services may also be exposed to Customer Data which contains Personal Information and/or Data as part of the Services.
2. Similarly, and as part of the rendering of the Services to the Customer, the Customer may through the DataEQ Products, gain direct access to and be exposed to the Data of third parties (such as social media users), which Data may include Personal Information.
3. As part of its Services, the Service Provider also shares Data with its Contributors but in doing so Customer’s identity is not disclosed to Contributors by the Service Provider.
4. Where the Customer permits the Service Provider to have direct access to Data, including but not limited to, the Customer’s social media accounts and more specifically its Direct Messages, the Customer warrants and undertakes to the Service Provider and the Group that it has obtained all of the requisite consents from all Data Subjects to whom any such Personal Data relates and that Customer has allowed such disclosure in full compliance with Data Protection Laws. The Customer hereby fully indemnifies the Service Provider and the Group from any and all losses and claims arising out of the Customer’s breach of the warranty contained in this clause 8.4.
5. The Parties specifically undertake to the other Party that it shall:
  1. process Personal Information in such manner that is reasonable, adequate, relevant, non-excessive, purpose-specific and non-infringing of the relevant individual’s privacy and in compliance with Data Protection Laws;
  2. secure the integrity and confidentiality of Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisation measures to prevent (a) loss of, damage to or unauthorised destruction of Personal Information and (b) unlawful access to or processing of Personal Information;
  3. take reasonable measures to (a) identify all reasonably foreseeable internal and external risks to such Data; (b) establish and maintain appropriate safeguards against such risks; (c) regularly verify that the safeguards are effectively implemented; and (d) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
  4. have due regard to generally accepted information security practices and procedures which may apply to it generally or be required in terms of specific industry or professional rules and regulations; and
  5. if there are reasonable grounds to believe that any Personal Information has been accessed or acquired by an unauthorised person, immediately notify the Customer or the Service Provider, as applicable, thereof.
6. The Customer agrees to the disclosure and processing of Personal Information by the Service Provider to any third party (including but not limited to members of the Group), where the Service Provider is required by law, regulation or court order, or to enable a public body to properly perform a public law duty, or where such disclosure is necessary for pursuing the Service Provider legitimate interests, or in order to comply with its obligations under this Agreement.
7. The Service Provider and the relevant Group company processes Data inside of the DataEQ system and platform and the Data remains at all times in the DataEQ data centre which is based in Germany (within the European Economic Area/ EEA). Many of the Service Provider’s customers and the Contributors are based outside of the EEA. Data accessed by the customers and the Crowd remains on the DataEQ system is and is only accessible through its platform or app. If the Service Provider transfers any Personal Data outside of South Africa, the United Kingdom or the EEA, the Service Provider takes steps to ensure ensure that adequate safeguards are in place to protect your Personal Information and to make sure it is treated securely. The Customer consents and authorizes the Service Provider and the Group to transfer the Customer’s Personal Information on this basis for the specific and limited purposes set out in clause 8.6. and the Service Provider shall in doing so ensure that the foreign third party recipient is subject to a law, binding corporate rules or a binding agreement which provides an adequate level of protection that is similar to the protection provided in POPIA.
8. The Customer undertakes to the Service Provider that it will not, nor will it allow, any other party to copy, compile, collate, mine, store, transfer, alter, delete, interfere with, or use any Personal Information obtained in connection with the Services, in a manner that is in contravention of applicable Data Protection Laws.
9. The Customer will not carry out any related or further processing activities in relation to any Data obtained through the Services for any other reason other than strictly in connection with the Services, unless it has the express advance written consent of the Service Provider.
10. The Customer undertakes to the Service Provider that it will not disclose or make available Personal Information obtained as a result of the Services to any third party, unless it has the express advance written consent of the Data Subject to do so.
11. As soon as possible after a Party becoming aware of a Personal Information breach, it will immediately notify the other Party in writing and shall take all steps to limit the compromise of the Personal Information and to restore the integrity of the affected information systems as soon as possible, and shall as soon as reasonably possible report all relevant facts relating to the compromise and steps to be taken to mitigate the extent and possible adverse effects of the compromise, including but not limited to providing details of any unauthorised person who are known to or may reasonably be suspected of, having accessed or acquired Personal Information.
12. The Customer agrees that upon any request from the Service Provider, it will provide reasonable evidence of its compliance with its obligations set out in this clause 8.
13. The Customer agrees to provide the Service Provider with details of any Personal Information affected by any compromise relating to Personal Information, including but not limited to the identity of Data Subjects, a description of the possible consequences of the compromise, a description of the measures taken by it to address the compromise and to accept reasonable directions from the Service Provider to address the security compromise, a recommendation with regards to the measures to be taken by Data Subject to mitigate the possible adverse effects of the compromise and where possible, details of the identity of the unauthorised person/s who are known to or may be reasonably suspected of, having accessed or acquired the Personal Information.
14. The Customer agrees to comply with all reasonable requests by the Service Provider for access, correction or complaint’s related to Data Subject’s Personal Information or any exercise by Data Subject of its rights under POPIA, and at the Service Provider ’s request will promptly provide the Service Provider with a copy of any Personal Information held by the Customer in relation to a specific Data Subject. This information must be provided by the Customer within a reasonable time, in a reasonable manner and format and at no cost to the Service Provider.
15. The Customer agrees that the Service Provider may as part of its compliance obligations in terms of Data Protection Laws, disclose to a Data Subject or Information Commissioner that the Customer may have been involved in processing such Data Subject’s Personal Information.
16. The Customer agrees that the Service Provider or a third party appointed by the Service Provider will have the right to audit the Customer’s processing activities at any time to determine compliance with the Customer’s obligations in terms of this Agreement. The Service Provider ’s audit rights will include the right of access to the Customer’s system, software, processes and procedures, and inspection of relevant security systems in place. Should any audit exercise reveal any non-compliance with the terms of this Agreement or Data Protection Laws, or written instructions from the Service Provider, then in addition to the Service Provider ’s other rights in terms of this Agreement, the Customer will be required to take necessary steps to rectify the non-compliance within the shortest time period possible.
17. The Customer agrees that at the Service Provider ’s request the Customer will be required to comply with specific retention, destruction and purging requirements as may be prescribed by the Service Provider from time to time and where applicable, in compliance with Data Protection Laws. In particular, deletion and destruction must be done in a manner that prevents any reconstruction in an intelligible form, i.e., identify/anonymise (by rendering the Personal Information unreadable and unable to be reassembled or reconstruction or re-identified).
18. The Customer agrees to reasonable amendments to the obligations relating to data protections, specifically this clause 8 as may be implemented by the Service Provider from time to time, to the extent that applicable Data Protection Laws requires such amendments for the benefit of Data Subjects.
19. The Customer agrees to absolve the Service Provider and the Group, its members, directors, employees and successors from any liability of whatsoever nature and/or costs, expenses and damages, arising from the Customer’s failure to comply with its undertakings and obligations set out in this clause 8.
IP OWNERSHIP RIGHTS
1. All right, title and interest in and to the DataEQ Proprietary Materials (including, without limitation, all IP Rights therein) shall at all times remain fully vested in and belong to DataEQ, and the Customer shall have no rights whatsoever in or to the DataEQ Proprietary Materials other than the right to use it in accordance with the terms of the limited licence granted pursuant to this Agreement.
2. The Customer shall be the owner of the Customer Data and the Deliverables, but shall not obtain ownership in any other materials, including any of the Raw Data, Enriched Data (subject of clause 9.3) or any methodologies used by DataEQ to produce the Deliverables, which methodologies shall form part of DataEQ’s Proprietary Materials.
3. DataEQ Consulting grants the Customer a non-exclusive, non-assignable, non-transferable perpetual licence to the Enriched Data.
4. Save for as specifically provided in clause 9.2 and 9.3, all IP Rights in or arising out of or in connection with the Services, shall be owned solely and exclusively by DataEQ.
5. The DataEQ Proprietary Materials may not be reproduced, duplicated, reverse engineered, de-compiled, copied, scanned, sold, resold, visited, or otherwise exploited in whole or in part without DataEQ’s express prior written consent.
6. The Customer may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DataEQ without the express written consent of the Service Provider.
7. The Service Provider shall not make use of the Customer Data, or any of the Customer’s trademarks or other proprietary information (including images, text, page layout, or form) without the express written consent of the Customer.
8. The Parties will not do, cause or permit anything to be done which may adversely affect any element of the other Party’s intellectual property, or IP Rights, and will not attack or assist in any attack on the validity, and/or registration of the intellectual property of the other Party.
9. The Parties' obligations in respect of the intellectual property and IP Rights under this Agreement will survive the termination of this Agreement.
LIABILITY AND INDEMNITY
1. Save as specifically otherwise provided in this Agreement, the parties’ liability to one another under this Agreement, howsoever arising, shall be limited to direct damages only and in no event shall either party be liable for any consequential, incidental, indirect, special or other damages whatsoever (including, without limitation, business interruption, loss of business information or other pecuniary loss) arising out of this Agreement regardless of whether such liability is based on breach of contract, delict, strict liability or otherwise. The Service Provider's total liability to the Customer under this Agreement shall further and in any event be limited to the value of the fees actually paid by the Customer during the preceding 6 (six) months in respect of the Services.
2. The limitations of liability (including the liability cap amount) referred to in clause 10.1 shall not in any way be applicable to the Customer’s breach of any of the warranties set out in clause 3, clause 7 and in clause 8, or to liability resulting from fraud, gross negligence, wilful conduct of the Parties, or in respect of claims for death of personal injury.
3. The Service Provider shall further not be liable for any loss, damage, liability or cost suffered or incurred by, or any claim brought against the Customer in connection with any third-party proprietary material provided by the Customer to DataEQ Consulting to enable or to assist DataEQ Consulting in providing the Services.
4. This clause will survive the termination of this Agreement.
TERMINATION AND CONSEQUENCES OF TERMINATION
1. Without derogating from the Service Provider’s rights of suspension of Services as provided in clauses 3.11, 4.5 and 5.4, either party (the “Complaining Party”) may terminate this Agreement immediately by giving written notice to the other Party (the “Defaulting Party”) if any of the following events occurs:
  1. the Defaulting Party has failed to make any payment of any sum due and payable under this Agreement within 7 (seven) days of written notice from the Complaining Party calling on it to make such payment;
  2. the Defaulting Party commits any breach of any of the provisions (other than a provision relating to payment as referred to in clause 9.1.1) of this Agreement and fails to remedy it within 14 days after receiving a written notice from the Complaining Party containing full particulars of the material breach and requiring it to be remedied; or
  3. the Defaulting Party is unable to pay its debts as they fall due; enters into compulsory or voluntary liquidation; compounds with or convenes a meeting of its creditors; is or becomes subject to any bankruptcy, insolvency or liquidation proceedings or order of a competent court; or ceases for any reason to carry on business in the ordinary course.
2. Any termination of this Agreement by a party in terms of clause 11.1 above, shall be without prejudice to any other remedies it may have in law or under this Agreement, including but not limited to, the right to claim specific performance of the terms of this Agreement and/or to claim damages (but subject to clause 10).
3. On termination of this Agreement for any reason:
  1. all rights granted to the Customer in respect of the DataEQ Proprietary Materials under this Agreement shall cease;
  2. the Customer shall cease all activities authorised by this Agreement in respect of the DataEQ Proprietary Materials;
  3. the Customer shall delete all Raw Data obtained through the Services;
  4. the Customer shall immediately pay to the Service Provider all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Service Provider shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  5. the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
  6. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
NO COMPETITION OR SOLICITATION
1. Each Party acknowledges that the other Party is reliant upon its employees and contractors and has invested substantial time and money in their training and development.
2. Each Party undertakes to the other that it will not at any time during the term of this Agreement or for a period of one year from the date at which this Agreement terminates or expires, however that may occur:
  1. induce to leave, solicit or entice away or endeavour to induce to leave, solicit or entice away any of the other Party’s director or employee, who (in the case of the Supplier) has undertaken work for the Customer or (in the case of both Parties) has had any dealings with the other Party in connection with the Services (and each Party agrees that, without prejudice to any other rights or remedies that the other Party might have, if a soliciting Party acts in breach of this provision it will be liable for a recruitment fee for each of the other Party’s employees induced to leave, solicited or enticed away at a rate equivalent to six (6) months’ wages or salary for the relevant employee);
  2. solicit or offer services or custom, or endeavour to solicit or offer services or custom, to any subcontractor engaged by the other Party to perform or provide services or perform obligations under or in connection with this Agreement to the Service Provider and/or the Customer; or
  3. cause or permit any person directly or indirectly under its control or supervision, or in its employ, to do any of the acts or things specified above.
3. The provisions of this clause 12 shall not be applicable where an employee of one Party opts to respond to a public advertisement for employment as published by or on behalf of the other Party.
GENERAL
1. The Parties choose the respective addresses specified in the Order Form as the addresses at which they will accept service of all documents, legal process and notices in respect of this Agreement. Any notice given in terms of this Agreement shall be in writing and shall: (a) if delivered by hand or courier be deemed to have been duly received by the addressee on the date of delivery; and (b) if transmitted by email be deemed to have been received by the addressee one business day after despatch, unless a delivery failure notification has been given by the relevant system. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the parties from the other, including by way of email, shall be adequate written notice or communication to such party.
2. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: governmental act, war, fire, flood, explosion, civil commotion or any act of God, except that nothing in this clause 13.2 shall excuse the Customer from any payment obligations under this Agreement.
3. No relaxation or indulgence granted by either party to the other shall be deemed to be a waiver of any of that party’s rights in terms hereof, nor shall same be deemed to be a novation of the terms and conditions and nor shall same stop either party from enforcing its rights hereunder. These terms and conditions shall not in any way be deemed to be a waiver by either party of any of its rights in law.
4. No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of both parties to this Agreement.
5. The Parties will act as independent contracting parties under this Agreement.Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent, or representative of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way without the prior written approval of the other Party.
6. Neither party may at any time cede, assign, transfer, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party, without the prior written consent of the other party. Notwithstanding anything to the contrary contained in this Agreement, the Service Provider may, without the Customer’s consent, cede and/or assign this Agreement and/or the licence granted hereunder in connection with any merger, change of control, corporate reorganisation or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement.
7. The Parties agree that this Agreement and its termination shall be governed by and construed in terms of the laws of the Republic of South Africa. The Parties hereby consent to exclusive jurisdiction of the South African courts in connection with any action or motion which either party to this Agreement may institute arising out of or in connection with this Agreement, its interpretation or its termination.
8. If any part or provision of this Agreement is or becomes unenforceable for any reason, that part or provision shall be deemed to be severable and shall not affect the validity of the remaining parts and provisions.
9. Taxes. Each Party shall be responsible for the payment of its own tax liability arising from the Agreement.
10. Survival of provisions: Any provision of the Agreement which contemplates performance or observance after any termination or expiration of the Agreement will survive and continue in full force and effect, notwithstanding that the clause itself does not provide for such survival.
11. In this Agreement, unless the context require otherwise:
  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to one gender shall include a reference to the other genders.
  3. Words in the singular shall include the plural and vice versa.
  4. Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words "without limitation" following them. The words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
  5. Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
  6. The headings are inserted for convenience only and shall not affect the construction of this Agreement.
12. This Agreement may be signed in counterparts, each of which shall deemed to be an original and all of which taken together shall constitute one and the same instrument.
13. Electronic Copy: A scanned or electronically reproduced copy or image of the Agreement will be deemed an original and may be submitted in any action or proceeding as competent evidence of the execution, terms and existence hereof.
14. The Parties acknowledge and agree that it shall not be a requirement that this Agreement be witnessed and signed by witnesses in order for the Agreement to be valid and enforceable.
15. The Parties acknowledge and agree that it shall not be a requirement for each of the pages of this Agreement to be initialled by the signatories in order for the Agreement to be valid and enforceable.
16. A party signing or accepting this Agreement on behalf of the Customer does by signing or accepting this Agreement warrants to the Service Provider that he/she is duly authorised to do so.
DESCRIPTION OF THE DATAEQ PRODUCTS
1. DataEQ Analyse
  1. DataEQ Analyse is a web-based sentiment analytics application which enables the collection, segmentation and visualisation of various forms of annotated social, online and other digitised media content.
  2. The Order Form sets out the description of the Services (and corresponding pricing structure) for the Customer and may include:
  3. “Essentials”, the purpose of which is to ascertain relevance of the brand being tracked;
  4. “Sentiment”, the purpose of which is to ascertain the positive, negative or neutral sentiment towards the brand;
  5. “Topics”, the purpose of which is to assess the Sentiment result so that the Contributors may determine topical information with a higher level of detail. The data sample size can vary, and parameters are automatically set by the DataEQ system; and/or
  6. “Custom”, the purpose of which is to provide Customer with a higher level of understanding, specific for the Customer based on the Customer’s specific questions or objectives.
2. DataEQ Engage
  1. DataEQ Engage is a social media customer service application which allows a team of users to respond to social media messages engaging with a brand, from a central platform.
3. DataEQ Explore
  1. DataEQ Explore adds additional functionality to the DataEQ Analyse product. It leverages the Twitter Full Archive Search API to provide near-real-time historical Twitter statistics for specified keywords. Users may choose to download this data for analysis using DataEQ Analyse.

DATAEQ TERMS AND CONDITIONS
This Agreement is hereby entered into between the Customer cited on and executing the Order Form (“the Customer”) and DataEQ Limited executing the Order Form as the service provider party (“Service Provider”), effective as from the date specified in the Order Form.

These Terms and Conditions, together with the Order Form, (which is hereby incorporated by reference into these Terms and Conditions), constitutes the complete contract between the Parties with respect to the transaction (“the Agreement”).

SERVICES OVERVIEW

DataEQ Limited, as the Service Provider party, shall, subject to what is specifically provided in the Order Form, provide the Customer with services that help the Customer to manage and measure public perception of the Customer’s brand over a period in a digital world, including social networks (“the Services”). DataEQ Limited processes data using a proprietary mix of algorithms, human crowd sourcing (“Crowd”) and artificial intelligence to determine relevance, sentiment, topics, themes and trends. The Services are intended to enable the Customer to measure social sentiment as a lead indicator of the health and status of its brand in the public eye and determine causality of sentiment (i.e. the factors that are causing or influencing public opinion in any given period).

DataEQ Limited’s Services are also used to measure the performance of the Customer’s brand against the brands of its competitors, if and as specified in the Order Form. As part of such measurement, DataEQ Limited shall consider volume of Mentions, public engagement with the Customer’s brand and Contributors (i.e., human-verified and AI processed), Sentiment and Topic analysis metrics.

DEFINITIONS
1. “Agreement” means this agreement between the Service Provider and the Customer, incorporating both the Order Form and any annexures thereto as well as the terms and conditions set out in this document.
2. “Customer” means the person, firm or company whose name appears on the Order Form, who has engaged the Service Provider to render the Services.
3. “Customer Data” means any information furnished to the Service Provider by the Customer which is or is intended to be processed by computer or manually, to be analysed, viewed and assessed by the Service Provider and which specifically includes but may not be limited to Personal Data, but which excludes Raw Data or Public Data collected by the Service Provider and/or the Customer in provision of the Services and/or through the DataEQ API.
4. "Commencement Date" means the date stipulated in the Order Form being the date on which the Services will commence.
5. “Contributors” means the various individuals engaged by DataEQ to utilise the DataEQ “Crowd” platform (“Crowd”) for purposes of enriching the Data by way of analysing and processing the relevant Mentions content provided by DataEQ (e.g. Mentions made by members of the public about the Customer and/or about the Customer’s competitors),and/or processing by third party artificial intelligence (“AI”) research service providers, in order that the Enriched Data and/or reports provided to the Customer are comprehensive and contain useful insights suited to the Customer’s requirements (as communicated by the Customer to the Service Provider, from time to time).
6. “Data” means any data supplied, stored, collected, collated, accessed or processed by or for the benefit of the Customer, including Personal Data as defined under the Data Protection Laws, and any other jurisdiction where the Services are provided.
7. “DataEQ” means DataEQ (Pty) Ltd (Registration Number 2011/000295/07), who the Parties acknowledge is the owner and licensor of the DataEQ Proprietary Materials and the DataEQ Products.
8. “DataEQ Products” means those DataEQ products which are offered by DataEQ Limited to theCustomer in terms of this Agreement, as more fully described in Annexure A to this Agreement and which may include DataEQ Analyse, DataEQ Explore, DataEQ Engage and any other services and/or products that DataEQ Limited may from time to time provide to the Customer.
9. “DataEQ Proprietary Materials” includes all websites, programs, software, source codes, methodologies, products, data, documents and any other materials licensed to DataEQ Limited by DataEQ in order to provide the Services (including without limitation, the DataEQ Products and DataEQ API, where applicable).
10. “Data Protection Laws” means any statutes, laws, legislation, regulations or binding policy, code of any government authority that relates to the security and protection of personally identifiable information, data privacy, trans-border data flow or data protection in force from time to time in the United Kingdom, including but not limited to relevant legislation and/or any equivalent legislation of other jurisdiction(s) where Personal Data is being processed or where a party is obliged to comply with, including, where applicable, EU Data Protection Laws [General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016] on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, as amended, replaced or superseded from time to time.
11. “Data Subject” has the meaning ascribed to it in GDPR to whom the specific Personal Data relates.
12. “Deliverables” shall mean the outcome of the Services delivered to the Customer by the Service Provider, namely the insights analysis, and may also include analyst reports (if set out in the Order Form), but in all instances excludes the Raw Data which is being reported on and/or analysed itself and the Enriched Data (which is subject to a licence in terms of clause 9) which is being reported on and/or analysed and the Enriched Data (which is subject to a licence in terms of clause 9).
13. “Direct Message/s” means the messages, which may include Personal Data, sent by customers of the Customer and other individuals / third parties directly to the Customer using the channels provided or made available by the Customer for such purpose (such as, inter alia, inbox functionality on social media platforms, such as X (previously known as Twitter), Facebook, Instagram etc, or via bots or artificial intelligence, email or SMS).
14. “DM Authorisation” means the authorisation given by the Customer on both its social media accounts and to the Service Provider in terms of these Terms and Conditions which permits the Service Provider to access the Customer’s Direct Messages, which access shall be subject to the terms as set out in clause 3.20 below.
15. “Enriched Data” means Raw Data (and more specifically the Mention) that has been analysed by the Contributors, the purpose of which is to enrich the Raw Data in accordance with the Customer’s requirements as specified in the Order Form.
16. “Group” means any holding, subsidiary and/or affiliated companies of the Service Provider including DataEQ Consulting Proprietary Limited and DataEQ Proprietary Limited (both incorporated in South Africa).
17. “IP Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets), and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
18. “Mentions” means any individual comment by an individual author related to the Customer (or its competitors, as the case may be), which are monitored, assessed and/or analysed as part of the Services.
19. “Order Form” means the order form (also referred to as the Cost Estimate issued by the Service Provider) and accepted by the Customer describing, inter alia, Services, the term of this Agreement, the Customer’s information, and the applicable fees payable by the Customer to the Service Provider in respect of the Services.
20. “Parties” means the Customer and the Service Provider and “Party” means either one of them as the context requires.
21. “Personal Data” means personal data as defined in terms of applicable Data Protection Laws.
22. “Public Data” means information which is generally available to the public and which may be collected by the Service Provider and/or any information furnished to the Service Provider by the Customer, as the case may be, which is or is intended to be processed by computer or manually, to be analysed, viewed and assessed by the Service Provider, and which is not protected from disclosure to third parties.
23. “Raw Data” means data relating to the Customer and/or Mentions that the Service Provider collects from public sources, including but not limited to X (previously known as Twitter), Meta, LinkedIn, Google, social media sites, online press sites, blogs and blog comments, mainstream news sources, and forums (and such other sources that may be included from time to time), which Raw Data is then enriched and structured by the Service Provider and/or accessed by the Customer as part of the Services and may include Direct Messages (as defined).
24. “Sentiment” means the positive, negative or neutral sentiment towards the relevant brand, as determined by the Service Provider.
25. “Services” means the services to be provided to the Customer by the Service Provider, as stipulated in the Order Form.
26. “Service Provider” means DataEQ Limited (Company Number 08736583), a company incorporated in accordance with the laws of England and Wales, who is a licensee of the DataEQ Proprietary Materials and DataEQ Products and the service provider party in terms of this Agreement.
27. “SONIA” means the Sterling Overnight Index Average being the United Kingdom’s primary risk free interest rate.
BASIS OF AGREEMENT
1. The Customer has engaged the Service Provider to provide the Services stipulated in the Order Form and to be rendered in accordance with the terms of this Agreement.
2. The Agreement constitutes the entire agreement between the Parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Service Provider which is not set out in this Agreement.
3. Unless specifically and expressly otherwise agreed in writing between the Parties, this Agreement applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, in respect of the Service Provider’s provision of the Services.
4. The Customer acknowledges and accepts that DataEQ is the owner and licensor of the DataEQ Proprietary Materials and DataEQ Products which are under licence to the Service Provider, and that certain undertakings and benefits of this Agreement are given in favour of both the Service Provider and DataEQ. The Parties agree that where any provision of this Agreement constitutes a stipulations for the benefit of a third party in favour of DataEQ as the Licensor of the DataEQ Products, and DataEQ shall be entitled at any time to accept such benefit on written notice to the Parties, notwithstanding that DataEQ is not a party to this Agreement and that DataEQ shall have no liability to the Customer in terms of this Agreement. DataEQ Limited, as the Service Provider, shall be liable to the Customer on the terms set out in this Agreement.
5. This Agreement will continue to bind the Customer and the Service Provider until the expiry or termination date stipulated in the Order Form, unless terminated earlier in accordance with the terms of this Agreement. Those provisions that are intended to survive the termination of the Agreement will continue to be effective.
PROVISION OF SERVICES
1. The Service Provider shall supply the Services with due care, skill and diligence and from the Commencement Date for the period specified in the Order Form, unless suspended or terminated earlier in accordance with this Agreement (“the Term”). The Service Provider’s rights of suspension are set out in clause 3.13 (suspension for non- compliance with X Terms), clause 4.5 (suspension late payment) for and clause 5.4 (suspension for exceeding Mention volume limits) below.
2. The Order Form will stipulate the applicable DataEQ Product and also whether or not the DataEQ API is included. Reference to the DataEQ API in these Terms and Conditions shall only apply to the Customer to the extent that the DataEQ API is applicable to that Customer. In certain instances, the Customer may, after the Commencement Date, request that DataEQ API access be included, in which event, those provisions relating to the DataEQ API shall then automatically apply. Where the Order Form does not specify that the API is included in the Services, the provisions relating to API use shall not be applicable.
3. Unless an Order Form specifically and expressly excludes DM Authorisation, the Customer authorizes access to its Direct Messages and the provisions relating to Direct Messages in these Terms and Conditions shall automatically apply to the Customer. In certain instances, the Customer may, after the Commencement Date, provide DM Authorisation, in which event, the provisions set out in clause relating to DM Authorisation shall then automatically apply.
4. Mutual Obligations: The Parties will cooperate and do all that is necessary in a timely and professional manner and without any unnecessary delays to facilitate the delivery of the Services and give effect to the rights and obligations set out in each Order Form.
5. All use of the DataEQ Product(s) and the DataEQ API (where applicable) and content, documentation, code, and related materials made available to the Customer is subject to and must comply with this Agreement.
6. In relation to the DataEQ API, the Customer is required to obtain prior written approval from DataEQ for its intended use of the DataEQ API, which approval shall not be unreasonably withheld.
7. The provision of the DataEQ API service is dependent on the uptime of its third-party providers. The Service Provider shall not be responsible for any interruptions and/or outages of the provision of the DataEQ API service due to such third-party providers. The Service Provider will use its best efforts to –
  1. notify the Customer in the event of an outage caused by a third-party provider; and
  2. restore service to an affected Customer.
8. The Service Provider further grants to the Customer a non-exclusive, limited, non-assignable, non-transferable sub-licence to use the DataEQ Products (as specified in the Order Form) via the website www.DataEQ.com (or such other domain as DataEQ may notify the Customer in writing from time to time) and the DataEQ API (if, applicable as set out in the Order Form), for the Term and specifically for the purpose of enjoying the use and benefit of the Services, provided that the Customer complies with these Terms and Conditions, and the Privacy Policy as set out on the DataEQ website and the Customer shall in receiving the Services and accessing the DataEQ platform, be bound by those terms and by terms of third parties (as referred to in the Privacy Policy), which incorporates amongst other things, the Customer’s rights in respect of their data from such third party services.
9. Third Party Services: Where Customers and/or users have chosen to connect their social network accounts to a third-party service such as Google, YouTube etc, Customers and users, are agreeing to provide data under the respective terms and privacy policies of those third party service providers, to which the Customer is bound. In respect of Google, these terms are available at https://policies/google.com/terms Certain features of the DataEQ platform integrate with YouTube API Services. By using these YouTube-related features, the Customer acknowledges and agrees that it (and it’s users) are also bound by the YouTube Terms of Service, available at: https://www.youtube.com/t/terms. The Customer’s use of YouTube functionality within the DataEQ platform is subject to both these Terms and Conditions and the applicable YouTube terms and policies.
10. Where the Customer accesses any third-party services via the DataEQ platform, which includes the processing of Raw Data through DataEQ Products, the Customer is responsible for ensuring that it does so in compliance with the law, and such use shall be governed by both the terms of this Agreement and the terms of use and privacy policies of such third-party services (including but not limited to X (previously known as Twitter) terms of services). DataEQ’s agreement with X (“the X Agreement”) is material and integral to the Service Provider being able to render the Services. In terms of the X Agreement, the Service Provider is obliged to ensure compliance by all end users (which in this instance would include the Customer) with X’s Terms of Service located at http://twitter.com/tos, the X privacy policy located at http://twitter.com/privacy and the X rules located at http://twitter.com/rules (hereinafter collectively referred to as the “X Terms”). The Customer is therefore obliged to comply with and undertakes to the Service Provider that it shall use its utmost and best endeavours to ensure its adherence to the X Terms.
11. The Customer (as an end user of the Service Provider) acknowledges that, with regards to X content specifically as provided by, or access by the Customer through DataEQ’s platform, such data belongs to X and whilst the Customer is entitled to download Raw Data for purposes of analysis and formulating its insights during the term of the Agreement, neither the Service Provider nor the Customer at any time obtains ownership of the Raw Data and shall therefore be obliged to delete such Raw Data on termination for whatsoever reason of the Agreement. The obligation to delete such Raw Data is a Service Provider obligation to X which obligation also extends to the Service Providers users, including the Customer.
12. In terms of the X Terms, the Customer (as an end user of the Service Provider) is strictly prohibited from aggregating, caching or storing location data or any geographic information contained in X information on a standalone basis and may only do so conjunction with a tweet to which it is attached.
13. In terms of the X Terms, the Customer (as an end user of the Service Provider) is prohibited from displaying tweets in or on a publicly accessible website or application, unless done in strict compliance with the X Terms Display Requirements and other relevant provisions as set out in the X Terms.
14. The Customer warrants to the Service Provider and to DataEQ that it will comply with clauses 3.8 to 3.13 and fully indemnifies the Service Provider and DataEQ, its directors, members and representatives for any losses of whatsoever nature caused by the Customer’s breach of any of the warranties set out in this clause 3.Without prejudice to the Service Provider’s rights in terms of this Agreement, it shall also be entitled to suspend Services where there is a suspected breach or non-compliance by the Customer with its undertakings set out in clauses 3.8 to 3.13.
15. The Customer acknowledges that it shall not obtain ownership of or licence to any data that is proprietary to DataEQ or DataEQ Limited or third party, including any Personal Data, obtained through the use of the Services. The Customer acknowledges that it shall not obtain ownership of any Intellectual Property rights in the DataEQ Products. The Customer shall only own the Deliverables that it derives from the Raw Data through the provision of the Services.
16. If after the Term, the Customer wishes to access any Raw Data relating to a particular period of the Term, the Service Provider shall be entitled to charge the Customer separately for access to such Raw Data in accordance with its usual rates, due to the fact that the Service Provider would incur costs in accessing such Raw Data on behalf of the Customer.
17. In the event of the Agreement being terminated by either party, the Customer undertakes to immediately delete all Raw Data and/or Personal Data cached, subject to its right to retain the Deliverables provided in terms of this Agreement.
18. The Customer shall be granted fair use of the DataEQ API. The Service Provider reserves the right to limit the number and/or frequency of API requests in its sole discretion. Should the Service Provider be of the opinion that the Customer has attempted to exceed or circumvent the rate limits, access to the DataEQ API may be temporarily or permanently blocked by the Service Provider, with reasonable prior written notice, and without the Service Provider becoming liable to the Customer or any other third party.
19. DataEQ reserves the right to make changes to the DataEQ Products and/or the DataEQ API from time to time. In the event of changes which may interrupt access, the Service Provider shall use its best efforts to notify the Customer at least 5 (five) business days before such changes go live. Support for older versions of the DataEQ API will not be guaranteed by the Service Provider.
20. The Customer undertakes and warrants to the Service Provider that in respect of its Direct Messages:
  1. the Customer grants all necessary consents for access to Direct Messages on its relevant social platforms.
  2. the Customer fully understands the implications of giving such authorisation, including that the Customer consents to the Service Provider accessing and processing Direct Messages in accordance with the provisions of these Terms and Conditions.
  3. the Customer acknowledges that Direct Messages (as part of Raw Data), would are stored in a secure database and are viewable by the Customer’s users and the Service Provider and its staff in an anonymized form via the DataEQ’s Analyse and DataEQ Engage platforms, with Personal Data redacted and that depending on the Customer’s specific account configuration, a sample of Raw Data (which may include Direct Messages), may be sent (also in redacted form) to Contributors.
  4. the Customer shall be responsible for all users who it has permitted to have access to its Direct Messages and shall procure that it and its users shall at all times adhere to the data protection provisions set out in these Terms and Conditions, and to applicable Data Protection Laws.
  5. that access to the Customer’s Direct Messages shall continue until the termination of this agreement, unless an earlier express written and signed request to disable such access has been received and acknowledged in writing by the Service Provider.
21. The Customer undertakes and warrants to the Service Provider that in relation to any Raw Data and/or Personal Data in any way obtained from the Service Provider pursuant to the Services, it shall not, and shall not permit any other party to –
  1. sell or license or grant rights to such Raw Data, Enriched Data, and/or to Personal Data so obtained, to any third parties;
  2. use such Raw Data, Enriched Data, and/or Personal Data so obtained for commercial purposes (other than for the specific purpose provided for in the Order Form);
  3. disseminate such Raw Data, Enriched Data, and/or Personal Data;
  4. sell access to such Raw Data, Enriched Data, and/or Personal Data;
  5. permit unauthorised access to such Raw Data, Enriched Data, and/or Personal Data;
  6. use such Raw Data and/or Enriched Data, including specifically Personal Data, in any way that violates this Agreement or Data Protection Laws, or which infringes the rights of any third party and will not authorise or permit any other person to do so; and/or
  7. use such Raw Data, Enriched Data, and/or Personal Data so obtained for any negative or unfairly discriminatory purposes or to harass and/or target individuals and/or groups.
22. The Customer is responsible for maintaining the confidentiality of any account and password assigned to it by the Service Provider (where applicable) in respect of DataEQ Products and/or DataEQ API and for preventing access to any computer used by the Service Provider to prevent unauthorised access to such account. The Customer accepts responsibility for all activities that occur under its account or password. The Customer shall take all necessary steps to ensure that the password is kept confidential and secure and shall inform the Service Provider immediately if it has any reason to believe that the Customer’s password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
23. The Service Provider makes certain disclosures about the Services, which are based on the nature of the Services and the data obtained by the Service Provider, which disclosures are intended to qualify and limit any and all warranties, undertakings and/or representations given by the Service Provider in relation to the Services. These disclosures are:-
  1. That due to the Raw Data being third party user data, the Service Provider simply accesses Raw Data as it is found at the source/s and the Service Provider is not able to guarantee or warrant precise levels of accuracy of the Raw Data collected and assessed, as part of the Services;
  2. That the Service Provider provides the Services based on its processes of analysis of the Raw Data but that it does not give any guarantees or undertakings that the Raw Data gathered and the insights and information provided to the Customer as part of the Services (including the Enriched Data) will have certain outcomes if applied by the Customer in practice, as these will be business decisions of the Customer, which the Service Provider has no control over and therefore cannot be held responsible for;
  3. That the Service Provider accesses the Raw Data from the sources referred to in clause 1.22 above but that in no way can the Service Provider guarantee 100% coverage of the internet, or the Raw Data sources i.e. it will not Data Track 100% of the Mentions published in such sources;
  4. That due to the public nature of the Raw Data, the Service Provider cannot and does not guarantee that the Customer has exclusive access to, and use of, the Raw Data and/or Enriched Data (although the Customer will have non-exclusive use of its Enriched Data in accordance with the licence granted to it in clause 9); and
  5. The Service Provider also has no control over any decisions made and/or actions taken by the Customer’s competitors who may also make use of the Service Provider’s Services and the DataEQ Products and therefore the Service Provider will not be liable therefor.
CHARGES AND PAYMENT
1. The fee for the Services is set out in the Order Form and, unless indicated otherwise, is quoted in Pounds Sterling (GBP) and is exclusive of VAT, sales taxes and/or any other applicable taxes.
2. The Customer shall pay the fee(s) for the Services in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where the fee(s) is payable in instalments (as stipulated in the Order Form), the Customer shall pay each instalment in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where no payment terms are stipulated in the Order Form, payments shall be due within 30 (thirty) calendar days from the date of invoice.
3. All payments due to the Service Provider must be made without deduction or set-off and of immediately available funds.
4. Interest on all overdue payments under this Agreement shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% above SONIA, which interest shall be calculated daily, compounded monthly and payable by the Customer to the Service Provider on demand.
5. Without derogating from the Service Provider’s right to terminate the Agreement in accordance with the provisions of this Agreement, in the event of any late payments, where the Service Provider has requested payment from the Customer and payment is still outstanding 7 (seven) calendar days from the date of such request, the Service Provider shall be entitled without further notice to suspend the Services and any access to the DataEQ Products and DataEQ API (where applicable) and shall not be liable to the Customer or any other party in relation to such suspension as a result of the Customer’s late payment.
6. All fees and charges for any other services provided by the Service Provider , including access to data after the Term, or for travel costs or disbursements, which are not specifically included in the Order Form will be quoted separately to the Customer and will be paid to the Service Provider by the Customer as agreed in writing between the parties and failing such agreement, within 30 (thirty) calendar days following the date of invoice.
MENTIONS VOLUME LIMIT AND OVERAGE CHARGES
1. The Order Form will stipulate the maximum number of Mentions per brand per month, which are based on volumes estimated as at the Commencement Date.
2. The Customer acknowledges that the Service Provider is not able to predict exact data volumes and from time to time, and/or on the occurrence of a specific event/s, Mentions volumes may spike causing the Customer’s usage to exceed the agreed limits set out in the Order Form.
3. With regards to volume limits and in order to manage the Customer’s expectations in relation to volume limits, DataEQ Analyse will send 3 (three) volume warning notifications as follows:
  1. The first notification when the DataEQ system detects that the threshold will be reached before the end of a particular month;
  2. The second notification when the DataEQ system reaches 80% (eighty percent) of the volume limit; and
  3. The third and final notification when the DataEQ system reaches 100% (one hundred percent) of the volume limit.
4. In the event of the maximum being reached, the Customer may opt to upgrade their account for the month to a higher volume limit, or alternatively to purchase additional data volume bundles to over the overage. The Customer may also elect to manage its overages manually, in which case the Customer would be required to sign off an additional order as soon as the Customer has received the second notice referred to in clause 5.3.2 above. Should the Customer fail to conclude such additional order form at the time that the notice referred to in clause 5.3.3 has been sent to the Customer, the Service Provider shall be entitled to immediately suspend the Customer’s access to the DataEQ Products, without penalty to the Customer, until an agreement between the parties in respect of the overages has been concluded.
5. If, during any month, the maximum volumes of Mentions have not been reached, these do not carry over to the following month.
CONFIDENTIALITY
1. Each Party hereby acknowledges that, during the course of its relationship with the other Party, information or records belonging to the other Party which are either identified as being confidential or which would reasonably be regarded as being of a confidential nature, in whatever format (“Confidential Information”), may be disclosed to it.
2. Subject to clause 6.3 below, each Party undertakes that it (a) shall keep the Confidential Information strictly confidential and will not disclose any of it to any person whatsoever; and (b) shall not, directly or indirectly, use the Confidential Information for any purpose other than that envisaged by this Agreement.
3. Each Party shall be entitled to disclose Confidential Information (a) to its employees, parent or sister companies and/or professional advisors solely to the extent strictly necessary for purpose of rendering the Services and provided that, prior to such disclosure, the receiving person is bound by a written confidentiality undertaking similar to that set out in this clause 6; and (b) if and only to the extent that doing so is required in order to satisfy an order of a court of competent jurisdiction or to otherwise comply with the provisions of any law or regulation in force at the time.
4. The provisions of this clause shall not apply to information to the extent to which it can be shown to be part of the public domain (other than as a result of a breach hereof), is Public Data, or is acquired from a third party (other than as a result of a breach hereof).
CUSTOMER DATA
1. The Customer acknowledges that in addition to Raw Data from the sources as set out in clause 1.22, the Service Provider may also be furnished with and/or have access to Customer Data, which may include Personal Data and the Customer hereby consents to the use of the Customer Data for the purpose of performing the Services.
2. Where the Customer itself provides any Customer Data to the Service Provider, the Customer is obliged to and undertakes to remove all Personal Data from such Customer Data prior to supplying such Customer Data to the Service Provider.
3. The Service Provider will process the Customer Data in accordance with the Services (as described in the Order Form), in compliance with clause 7 below.
4. The Customer acknowledges and agrees that the Service Provider is not required to and does not check or verify Customer Data provided to it and will not be responsible for any incorrect or inaccurate Customer Data provided to it.
5. The Service Provider shall not be liable for any errors, or omissions in any Customer Data provided to it by the Customer or for any losses resulting from the Customer’s failure to comply with its undertakings set out in this clause 7.
PERSONAL DATA AND DATA PROTECTION
1. The Parties acknowledge that the Data they receive from the other party and/or through the Services may include Personal Data. As referred to in clause 7 above, the Service Provider through providing the Services may also be exposed to Customer Data which contains Personal Data and/or Data as part of the Services.
2. As part of its Services, the Service Provider also shares Data with its Contributors but in doing so Customer’s identity is not disclosed to Contributors by the Service Provider.
3. The Parties specifically undertake to the other Party that it shall:
  1. process Personal Data in such manner that is reasonable, adequate, relevant, non-excessive, purpose-specific and non-infringing of the relevant individual’s privacy and in compliance with Data Protection Laws;
  2. secure the integrity and confidentiality of Personal Data in its possession or under its control by taking appropriate, reasonable technical and organisation measures to prevent (a) loss of, damage to or unauthorised destruction of Personal Data and (b) unlawful access to or processing of Personal Data;
  3. take reasonable measures to (a) identify all reasonably foreseeable internal and external risks to such Data; (b) establish and maintain appropriate safeguards against such risks; (c) regularly verify that the safeguards are effectively implemented; and (d) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
  4. have due regard to generally accepted information security practices and procedures which may apply to it generally or be required in terms of specific industry or professional rules and regulations; and
  5. if there are reasonable grounds to believe that any Personal Data has been accessed or acquired by an unauthorised person, immediately notify the Customer or the Service Provider, as applicable, thereof.
4. The Customer agrees to the disclosure and processing of Personal Data by the Service Provider to any third party (including but not limited to members of the Group), where the Service Provider is required by law, regulation or court order, or to enable a public body to properly perform a public law duty, or where such disclosure is necessary for pursuing the Service Provider legitimate interests, or in order to comply with its obligations under this Agreement.
5. The Service Provider and the relevant Group company processes Data inside of the DataEQ system and platform and the Data remains at all times in the DataEQ data centre which is based in Germany (within the European Economic Area/ EEA). Many of the Service Provider’s customers and the Contributors are based outside of the EEA. Data accessed by the customers and the Crowd remains on the DataEQ system is and is only accessible through its platform or app. If the Service Provider transfers any Personal Data outside of South Africa, the United Kingdom or the EEA, the Service Provider takes steps to ensure ensure that adequate safeguards are in place to protect your Personal Information and to make sure it is treated securely. The Customer consents and authorises the Service Provider and the Group to transfer the Customer’s Personal Data on this basis for the specific and limited purposes set out in clause 8.6. and the Service Provider shall in doing so ensure that the foreign third party recipient is subject to a law, binding corporate rules or a binding agreement which provides an adequate level of protection that is similar to the protection provided in GDPR.
6. The Customer undertakes to the Service Provider that it will not, nor will it allow, any other party to copy, compile, collate, mine, store, transfer, alter, delete, interfere with, or use any Personal Data obtained in connection with the Services, in a manner that is in contravention of applicable Data Protection Laws.
7. The Customer will not carry out any related or further processing activities in relation to any Data obtained through the Services for any other reason other than strictly in connection with the Services, unless it has the express advance written consent of the Service Provider.
8. The Customer undertakes to the Service Provider that it will not disclose or make available Personal Data obtained as a result of the Services to any third party, unless it has the express advance written consent of the Data Subject to do so.
9. As soon as possible after a Party becoming aware of a Personal Data breach, it will immediately notify the other Party in writing and shall take all steps to limit the compromise of the Personal Data and to restore the integrity of the affected information systems as soon as possible, and shall as soon as reasonably possible report all relevant facts relating to the compromise and steps to be taken to mitigate the extent and possible adverse effects of the compromise, including but not limited to providing details of any unauthorised person who are known to or may reasonably be suspected of, having accessed or acquired Personal Data.
10. The Customer agrees that upon any request from the Service Provider, it will provide reasonable evidence of its compliance with its obligations set out in this clause 8.
11. The Customer agrees to provide the Service Provider with details of any Personal Data affected by any compromise relating to Personal Data, including but not limited to the identity of Data Subjects, a description of the possible consequences of the compromise, a description of the measures taken by it to address the compromise and to accept reasonable directions from the Service Provider to address the security compromise, a recommendation with regards to the measures to be taken by Data Subject to mitigate the possible adverse effects of the compromise and where possible, details of the identity of the unauthorised person/s who are known to or may be reasonably suspected of, having accessed or acquired the Personal Data.
12. The Customer agrees to comply with all reasonable requests by the Service Provider for access, correction or complaint’s related to Data Subject’s Personal Data or any exercise by Data Subject of its rights under GDPR, and at the Service Provider ’s request will promptly provide the Service Provider with a copy of any Personal Data held by the Customer in relation to a specific Data Subject. This information must be provided by the Customer within a reasonable time, in a reasonable manner and format and at no cost to the Service Provider.
13. The Customer agrees that the Service Provider may as part of its compliance obligations in terms of Data Protection Laws, disclose to a Data Subject or Information Commissioner that the Customer may have been involved in processing such Data Subject’s Personal Data.
14. The Customer agrees that the Service Provider or a third party appointed by the Service Provider will have the right to audit the Customer’s processing activities at any time to determine compliance with the Customer’s obligations in terms of this Agreement. The Service Provider ’s audit rights will include the right of access to the Customer’s system, software, processes and procedures, and inspection of relevant security systems in place. Should any audit exercise reveal any non-compliance with the terms of this Agreement or Data Protection Laws, or written instructions from the Service Provider, then in addition to the Service Provider ’s other rights in terms of this Agreement, the Customer will be required to take necessary steps to rectify the non-compliance within the shortest time period possible.
15. The Customer agrees that at the Service Provider ’s request the Customer will be required to comply with specific retention, destruction and purging requirements as may be prescribed by the Service Provider from time to time and where applicable, in compliance with Data Protection Laws. In particular, deletion and destruction must be done in a manner that prevents any reconstruction in an intelligible form, i.e., identify/anonymise (by rendering the Personal Data unreadable and unable to be reassembled or reconstruction or re-identified).
16. The Customer agrees to reasonable amendments to the obligations relating to data protections, specifically this clause 8 as may be implemented by the Service Provider from time to time, to the extent that applicable Data Protection Laws requires such amendments for the benefit of Data Subjects.
17. The Customer agrees to absolve the Service Provider and the Group, its members, directors, employees and successors from any liability of whatsoever nature and/or costs, expenses and damages, arising from the Customer’s failure to comply with its undertakings and obligations set out in this clause 8.
IP OWNERSHIP RIGHTS
1. All right, title and interest in and to the DataEQ Proprietary Materials (including, without limitation, all IP Rights therein) shall at all times remain fully vested in and belong to DataEQ, and the Customer shall have no rights whatsoever in or to the DataEQ Proprietary Materials other than the right to use it in accordance with the terms of the limited licence granted pursuant to this Agreement.
2. The Customer shall be the owner of the Customer Data and the Deliverables, but shall not obtain ownership in any other materials, including any of the Raw Data, Enriched Data (subject of clause 9.3) or any methodologies used by DataEQ to produce the Deliverables, which methodologies shall form part of DataEQ’s Proprietary Materials.
3. DataEQ Limited grants the Customer a non-exclusive, non-assignable, non-transferable perpetual licence to the Enriched Data.
4. Save for as specifically provided in clause 9.2 and 9.3, all IP Rights in or arising out of or in connection with the Services, shall be owned solely and exclusively by DataEQ.
5. The DataEQ Proprietary Materials may not be reproduced, duplicated, reverse engineered, de-compiled, copied, scanned, sold, resold, visited, or otherwise exploited in whole or in part without DataEQ’s express prior written consent.
6. The Customer may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of DataEQ without the express written consent of the Service Provider.
7. The Service Provider shall not make use of the Customer Data, or any of the Customer’s trademarks or other proprietary information (including images, text, page layout, or form) without the express written consent of the Customer.
8. The Parties will not do, cause or permit anything to be done which may adversely affect any element of the other Party’s intellectual property, or IP Rights, and will not attack or assist in any attack on the validity, and/or registration of the intellectual property of the other Party.
9. The Parties' obligations in respect of the intellectual property and IP Rights under this Agreement will survive the termination of this Agreement.
LIABILITY AND INDEMNITY
1. Save as specifically otherwise provided in this Agreement, the parties’ liability to one another under this Agreement, howsoever arising, shall be limited to direct damages only and in no event shall either party be liable for any consequential, incidental, indirect, special or other damages whatsoever (including, without limitation, business interruption, loss of business information or other pecuniary loss) arising out of this Agreement regardless of whether such liability is based on breach of contract, delict, strict liability or otherwise. The Service Provider's total liability to the Customer under this Agreement shall further and in any event be limited to the value of the fees actually paid by the Customer during the preceding 6 (six) months in respect of the Services.
2. The limitations of liability referred to in clause 10.1 (including the liability cap amount) shall not in any way be applicable to the Customer’s breach of any of the warranties set out in clause 3, clause 8 and in clause 9, or to liability resulting from fraud, gross negligence, wilful conduct of the Parties, or in respect of claims for death of personal injury.
3. The Service Provider shall further not be liable for any loss, damage, liability or cost suffered or incurred by, or any claim brought against the Customer in connection with any third-party proprietary material provided by the Customer to DataEQ to enable or to assist DataEQ in providing the Services.
4. This clause will survive the termination of this Agreement.
TERMINATION AND CONSEQUENCES OF TERMINATION
1. Without derogating from the Service Provider’s rights of suspension of Services as provided in clause 4.5, either party (the “Complaining Party”) may terminate this Agreement immediately by giving written notice to the other Party (the “Defaulting Party”) if any of the following events occurs:
  1. the Defaulting Party has failed to make any payment of any sum due and payable under this Agreement within 7 (seven) days of written notice from the Complaining Party calling on it to make such payment;
  2. the Defaulting Party commits any breach of any of the provisions (other than a provision relating to payment as referred to in clause 11.1.1) of this Agreement and fails to remedy it within 14 days after receiving a written notice from the Complaining Party containing full particulars of the material breach and requiring it to be remedied; or
  3. the Defaulting Party is unable to pay its debts as they fall due; enters into compulsory or voluntary liquidation; compounds with or convenes a meeting of its creditors; is or becomes subject to any bankruptcy, insolvency or liquidation proceedings or order of a competent court; or ceases for any reason to carry on business in the ordinary course.
2. Any termination of this Agreement by a party in terms of clause 11.1 above, shall be without prejudice to any other remedies it may have in law or under this Agreement, including but not limited to, the right to claim specific performance of the terms of this Agreement and/or to claim damages (but subject to clause 11).
3. On termination of this Agreement for any reason:
  1. all rights granted to the Customer in respect of the DataEQ Proprietary Materials under this Agreement shall cease;
  2. the Customer shall cease all activities authorised by this Agreement in respect of the DataEQ Proprietary Materials;
  3. the Customer shall delete all Raw Data obtained through the Services;
  4. the Customer shall immediately pay to the Service Provider all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Service Provider shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  5. the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
  6. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
NO COMPETITION OR SOLICITATION
1. Each Party acknowledges that the other Party is reliant upon its employees and contractors and has invested substantial time and money in their training and development.
2. Each Party undertakes to the other that it will not at any time during the term of this Agreement or for a period of one year from the date at which this Agreement terminates or expires, however that may occur:
  1. induce to leave, solicit or entice away or endeavour to induce to leave, solicit or entice away any of the other Party’s director or employee, who (in the case of the Supplier) has undertaken work for the Customer or (in the case of both Parties) has had any dealings with the other Party in connection with the Services (and each Party agrees that, without prejudice to any other rights or remedies that the other Party might have, if a soliciting Party acts in breach of this provision it will be liable for a recruitment fee for each of the other Party’s employees induced to leave, solicited or enticed away at a rate equivalent to six (6) months’ wages or salary for the relevant employee);
  2. solicit or offer services or custom, or endeavour to solicit or offer services or custom, to any subcontractor engaged by the other Party to perform or provide services or perform obligations under or in connection with this Agreement to the Service Provider and/or the Customer; or
  3. cause or permit any person directly or indirectly under its control or supervision, or in its employ, to do any of the acts or things specified above.
3. The provisions of this clause 12 shall not be applicable where an employee of one Party opts to respond to a public advertisement for employment as published by or on behalf of the other Party.
GENERAL
1. The Parties choose the respective addresses specified in the Order Form as the addresses at which they will accept service of all documents, legal process and notices in respect of this Agreement. Any notice given in terms of this Agreement shall be in writing and shall: (a) if delivered by hand or courier be deemed to have been duly received by the addressee on the date of delivery; and (b) if transmitted by email be deemed to have been received by the addressee one business day after despatch, unless a delivery failure notification has been given by the relevant system. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the parties from the other, including by way of email, shall be adequate written notice or communication to such party.
2. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: governmental act, war, fire, flood, explosion, civil commotion or any act of God, except that nothing in this clause 12.2 shall excuse the Customer from any payment obligations under this Agreement.
3. No relaxation or indulgence granted by either party to the other shall be deemed to be a waiver of any of that party’s rights in terms hereof, nor shall same be deemed to be a novation of the terms and conditions and nor shall same stop either party from enforcing its rights hereunder. These terms and conditions shall not in any way be deemed to be a waiver by either party of any of its rights in law.
4. No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of both parties to this Agreement.
5. The Parties will act as independent contracting parties under this Agreement. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent, or representative of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way without the prior written approval of the other Party.
6. Neither party may at any time cede, assign, transfer, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party, without the prior written consent of the other party. Notwithstanding anything to the contrary contained in this Agreement, the Service Provider may, without the Customer’s consent, cede and/or assign this Agreement and/or the licence granted hereunder in connection with any merger, change of control, corporate reorganisation or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement.
7. The Parties agree that this Agreement and its termination shall be governed by and construed in terms of the laws of England and Wales. The Parties hereby consent to exclusive jurisdiction of the English courts in connection with any action or motion which either party to this Agreement may institute arising out of or in connection with this Agreement, its interpretation or its termination.
8. If any part or provision of this Agreement is or becomes unenforceable for any reason, that part or provision shall be deemed to be severable and shall not affect the validity of the remaining parts and provisions.
9. Taxes. Each Party shall be responsible for the payment of its own tax liability arising from the Agreement.
10. Survival of provisions: Any provision of the Agreement which contemplates performance or observance after any termination or expiration of the Agreement will survive and continue in full force and effect, notwithstanding that the clause itself does not provide for such survival.
11. In this Agreement, unless the context require otherwise:
  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to one gender shall include a reference to the other genders.
  3. Words in the singular shall include the plural and vice versa.
  4. Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words "without limitation" following them. The words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
  5. Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
  6. The headings are inserted for convenience only and shall not affect the construction of this Agreement.
12. This Agreement may be signed in counterparts, each of which shall deemed to be an original and all of which taken together shall constitute one and the same instrument.
13. Electronic Copy: A scanned or electronically reproduced copy or image of the Agreement will be deemed an original and may be submitted in any action or proceeding as competent evidence of the execution, terms and existence hereof.
14. The Parties acknowledge and agree that it shall not be a requirement that this Agreement be witnessed and signed by witnesses in order for the Agreement to be valid and enforceable.
15. The Parties acknowledge and agree that it shall not be a requirement for each of the pages of this Agreement to be initialled by the signatories in order for the Agreement to be valid and enforceable.
16. A party signing or accepting this Agreement on behalf of the Customer does by signing or accepting this Agreement warrants to the Service Provider that he/she is duly authorised to do so.
Annexure A: DESCRIPTION OF THE DATAEQ PRODUCTS
1. DataEQ Analyse
  1. DataEQ Analyse is a web-based sentiment analytics application which enables the collection, segmentation and visualisation of various forms of annotated social, online and other digitised media content.
  2. The Order Form sets out the description of the Services (and corresponding pricing structure) for the Customer and may include:
  3. “Essentials”, the purpose of which is to ascertain relevance of the brand being tracked;
  4. “Sentiment”, the purpose of which is to ascertain the positive, negative or neutral sentiment towards the brand;
  5. “Topics”, the purpose of which is to assess the Sentiment result so that the Contributors may determine topical information with a higher level of detail. The data sample size can vary, and parameters are automatically set by the DataEQ system; and/or
  6. “Custom”, the purpose of which is to provide Customer with a higher level of understanding, specific for the Customer based on the Customer’s specific questions or objectives.
2. DataEQ Engage
  1. DataEQ Engage is a social media customer service application which allows a team of users to respond to social media messages engaging with a brand, from a central platform.
3. DataEQ Explore
  1. DataEQ Explore adds additional functionality to the DataEQ Analyse product. It leverages the X Full Archive Search API to provide near-real-time historical X statistics for specified keywords. Users may choose to download this data for analysis using DataEQ Analyse.

DataEQ Consulting: Terms and Conditions

DataEQ Limited UK: Terms and Conditions