Terms & condiditons
Eversync Software Terms and Conditions
These Terms and Conditions, Pricing Plan and (where relevant) the Order Form (together the "Agreement") govern the Customer’s use of the Software. The “Customer” is defined as the entity that is purchasing the Services and paying the relevant Licence Fee in accordance with this Agreement. Eversync Technologies Limited (company number 13955014) (“Eversync”) is a company that provides the services set out below in relation to the Software (the Services).
1.1 TheAgreement shall commence on the date that the Customer pays the first instalment of the Licence Fee or as otherwise set out in the Order Form(“Start Date”) and continue unless terminated by either party either (i) in accordance with the terms of this Agreement or (ii) by one party giving written notice to the other to terminate at any time (the “Term”).
1.2 If the Agreement is terminated for any reason by the Customer, Eversync shall not be under any obligation to refund any Licence Fees paid up until the date of termination.
2.1 Means the Eversync’ proprietary software which is an observability &incident management system for business operations teams to automatically detect & real-time resolve operational incidents without coding. The key features of the “Software” are as follows:
(a) connection of data sources to platform;
(b) integration with communication tools & task management systems as destinations;
(c) creation of reusable datasets;
(d) setup of operational monitors on top of data;
(e) generation of events & orchestration to connected destinations; and
(f) dashboards and charts that can be created from connected or generated data.
2.2 The Software is provided under one of three “Pricing Plans” which are chosen by the Customer via the Eversync website (the “Website”). Each Pricing Plan is subject to the license specifications as described on the Website including (without limitation) the capacity caps found https://www.eversync.com/pricing (the “License Specifications”).
3. Intellectual Property Licence
3.1 Subject to the License Specifications and the Customer complying with the Payment Terms, Eversync hereby grants to the Customer a non-exclusive, non-transferrable, licence to access and use the Services and Software in accordance with this Agreement (the “Eversync Licence”).
3.2 Customer hereby grants to Eversync a worldwide, non-exclusive, royalty-free, perpetual right and license to use, reproduce, modify, reformat and create derivative works of any and all Customer Materials (as defined below) provided to Eversync under this Agreement for purposes of developing, testing, implementing, hosting, supporting and maintaining the Software (“Customer Licence”).
3.3 Customer will provide reasonable assistance to Eversync in Eversync’ testing of the Software. The parties acknowledge and agree that the features, functionality and other specifications of the Software, the pace at which the Software will be developed and the completion date of any Software or updates will be determined at Eversync’ sole discretion.
4.1 Eversync shall give access to the Customer to use the Software in accordance with the Licence Specifications as a cloud-based software and as a service product in accordance with the terms of this Agreement on the Customer's equipment electronically within a reasonable time following the date of this Agreement. The Services also include the Eversync Licence of the Software itself and any upgrades that Eversync might make to the Software during the Term.
4.2 Other than expressly stated otherwise in this Agreement, the Customer acknowledges that it is the Customer’s sole responsibility to determine that the Services meet the Customer’s business requirements and, to the fullest extent permissible by law and without limitation, Eversync gives no warranties that the Services will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement.
4.3 The Customer agrees and acknowledges that in providing the Services Eversync may at its discretion use third party analytics tools provided that it shall at all times provide such Services or parts thereof in accordance with the terms of this Agreement.
4.4 Where the Customer has chosen the Growth plan, in consideration for the Customer Licence, the following shall apply:
(a) The Customer shall pay no fee for the Software between the Start Date and for 14 days following the Start Date (Trial Period);
(b) The Customer shall pay the Licence Fee per month from the end date of the Trial Period and each successive month thereon;
(c) The Customer is not able to use the SMS or Whatsapp addons during the Trial Period.
5. Customer's obligations
5.1 The Customer shall:
(a) co-operate with Eversync in all matters relating to the Services;
(b) comply with Eversync’ instructions in relation to the onboarding and ongoing use of the Software, including but not limited to providing access to Customer databases, access through Customer firewalls and such other system access required by Eversync; and
(c) use the Services in accordance with the License Specifications.
5.2 With respect to comments, suggestions, data, enhancement requests, recommendations or other feedback provided by Customer, its affiliates and their personnel (“Feedback”), Customer hereby grants (on behalf of itself and its affiliates and their personnel) to Eversync a non-exclusive, perpetual, irrevocable, perpetual, world-wide, royalty-free, fully paid up, sublicenseable, transferable, right and license, with full rights to grant sublicenses, to use, make, have made, offer for sale, sell, license, import, copy, create derivative works of, distribute, perform, transmit, and display and otherwise exploit such Feedback for any and all purposes whatsoever, without restriction.
5.3 Eversync shall have no liability arising from any breach of the terms of this Agreement or otherwise, if: (i) any claim relates to a modification of the Services or Software; (ii) where the Services have not been used in accordance with the Licence Specifications; or (iii) where the Customer is in breach of any other term of this Agreement.
5.4 In the event that the Customer requests (and Eversync agrees at its discretion) that the Services and/or Software are integrated with the Customer’s own or other third party software, Eversync shall not be liable for any failure of the Services provided that such failure is not directly attributable to a breach of Eversync’ obligations under the Agreement.
5.5 In the event that the Customer exceeds or breaches the License Specifications or any of the Customer’s obligations under this Agreement, Eversync shall be entitled, at its sole discretion, to: (i) suspend all or any part of the Services; or (ii) charge additional costs in accordance with its then current Pricing Plan and the Payment Terms.
6. Payment Terms
6.1 In consideration for the Services the Customer shall pay to Eversync the relevant Licence Fee per month. The “Licence Fee” shall be the corresponding monthly fee for the chosen Pricing Plan as per the Website.
6.2 The Licence Fee shall become due and payable on the first day of each calendar month in advance of the applicable Services.
6.3 The Customer shall pay each invoice submitted to it by Eversync within 15 days of receipt from time to time.
6.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Eversync any sum due under this Agreement on the due date Eversync may suspend all or part of the Services and/or Eversync Licence until payment has been made in full.
7. Intellectual Property
7.1 For the purpose of this Agreement “Intellectual Property Rights” mean all copyright and related rights, patents, rights to inventions, utility models, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
7.2 All Intellectual Property Rights in the Software and the Services including the source code, algorithms, user interface content, design and process flows used to deliver the Services including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software (together “Eversync Intellectual Property”) and all improvements, variations, adaptations, upgrades and conversions is the property of Eversync, its affiliates, its licensors or other relevant third parties and the Customer shall have no rights in respect of the Eversync Intellectual Property except as expressly granted under this Agreement. By continuing to use the Services the Customer acknowledges that such material is protected by applicable United Kingdom and international intellectual property and other laws.
7.3 Save for as set out in this Agreement, Eversync shall not gain any rights in or to the Intellectual Property Rights of the Customer.
8.1 The parties agree to treat as confidential all information obtained from each other pursuant to this Agreement including the Feedback and shall not copy or use such information other than as necessary under this Agreement and shall not divulge such information to any person without the other's prior written consent. These obligations shall not apply to information which is: (i) Aggregated Data; (ii) information provided as part of the Customer Obligations (save for the Feedback); (iii) already in the public domain; or (iv) becomes so at a future date (otherwise than as a result of a breach of this obligation); (v) or which is trivial or obvious. The obligations as to confidentiality shall survive any termination of this Agreement.
8.2 Additionally, each party will not disparage or defame the other party, its business or products. Notwithstanding the foregoing restrictions, if Customer uses the Software, Eversync may list Customer and/or such affiliates (including its/their branding) as a customer of Eversync and shall be entitled due to publicise the Customer and its affiliates as a customer of Eversync.
9. Aggregated Data and Third Party Data
9.1 During and after the term of this Agreement, Eversync shall have the right to use Aggregated Data for Eversync’ internal business purposes (such as improvement, enhancement, diagnostic, forecasting, planning and corrective purposes and to develop, test, and enhance the Software) and to disclose Aggregated Data in Eversync’ public statements and marketing materials describing and/or promoting the Software. “Aggregated Data” means any data or information (including data and information derived from Customer’s confidential information) that:
(a) has been anonymized,
(b) does not identify an individual and cannot be used to identify an individual, and
(c) is not attributable to Customer, its affiliates and their personnel, customers, suppliers and vendors.
9.2 The Customer may give Eversync access to data from third party data providers of the Customer from time to time in writing (Third Party Data Providers) including by giving Eversync access to the Customer’s Third Party Data Provider accounts (Third Party Data Acquisition).
9.3 The Customer acknowledges and agrees that it shall at all times obtain and maintain all necessary consents, permissions and licences to allow Eversync to carry out Third Party Data Acquisition in accordance with providing the Services.
9.4 The Customer warrants that all data derived from the Third Party Data Acquisition (Third Party Data) shall be accurate and free from errors.
9.5 The Customer hereby grants to Eversync a non-exclusive licence to use the Third Party Data as it requires to provide the Services.
9.6 The Customer acknowledges and agrees that under no circumstances shall Eversync be liable for any loss caused directly or indirectly by the Third Party Data.
9.7 The Customer agrees and acknowledges that Aggregated Data may be combined with other data.
10. Termination for Breach
10.1 Each party shall be entitled to terminate the Agreement on a material breach by the other party of any of the terms (including non-payment) provided that written notice has been given by the non-breaching party and the breaching party has been given a period of 15 days to remedy such breach.
10.2 Termination shall not affect any payment which is due or will become due to any party.
11. Consequences of Termination
11.1 Upon termination or expiry of this Agreement for any reason:
(a) the Eversync Licence shall automatically terminate;
(b) the Customer shall cease all activities authorised by the Eversync Licence;
(c) the Customer shall pay to Eversync within 10 days of termination any sums due to Eversync under this licence; and
(d) the Customer shall immediately destroy or return to Eversync (at Eversync' option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify in writing to Eversync that it has done so.
12. Limitation of liability
12.1 Subject to the foregoing, Eversync’ liability for any loss or damage (whether arising from breach of contract or in tort) is limited in aggregate in the value of €100,000.
12.2 Eversync is not liable for any indirect or consequential loss or damage, lost profits, lost revenue, lost data or business interruption suffered or incurred by Customer or any other person arising out of or in connection with the provision of the Software or Services, whether arising from breach of contract or in tort.
13.1 The Customer agrees that Eversync may make a public announcement through its website and via social media channels in relation to the Services set out in the Software Licence Agreement.
14. Data Protection
14.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
14.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Eversync is the Processor. The Software Licence Agreement sets out the scope, nature and purpose of processing by Eversync, the duration of the processing and the types of Personal Data and categories of Data Subject.
14.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Eversync for the duration and purposes of this agreement.
14.4 Without prejudice to the generality of clause 12.1, Eversync shall, in relation to any Personal Data processed in connection with the performance by Eversync of its obligations under this agreement:
(a) process that Personal Data only on the documented written instructions of the Customer unless Eversync is required by Domestic Law or EU Law to otherwise process that Personal Data. Where Eversync is relying on Domestic Law or EU Law as the basis for processing Personal Data, Eversync shall promptly notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits Eversync from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Eversync complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Eversync complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) delete or return Personal Data and copies thereof to the Customer on termination of the
agreement unless required by Domestic Law or EU Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
14.5 The Customer does not consent to Eversync appointing any third party processor of Personal Data under this agreement unless such third party processor is set out in the Agreement or as otherwise agreed in writing by the parties.
14.6 The Customer acknowledges and agrees that it is responsible for ensuring it has all necessary consents and permissions from Data Subjects to allow Eversync to process Personal Data including any sub-processing by a third party in accordance with this Agreement.
14.7 The Customer acknowledges and agrees that if it wishes Eversync to use a third party named in the Software Licence Agreement, Eversync shall not be liable for any act or omission of such third party to the extent that such third party breaches Data Protection Legislation.
14.8 Eversync shall be required to process the following personal data as part of the Services and the Customer represents and warrants that no other personal data shall be processed as part of the Services and the Customer has all relevant consents and licenses to permit such processing:
(a) the individual’s name;
(b) the individual’s email;
(c) the individual’s phone number; and
(d) the individual’s address.
14.9 For the purpose of this clause, the following definitions shall apply:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
EU Law: the law of the European Union or any member state of the European Union.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
15. Conflict remedy and choice of Law
15.1 In the event of any dispute arising in connection with this Agreement, the parties agree to first undertake the following before taking any legal action:
(a) Step 1 - The CPO and COO of each party shall meet and attempt to agree a solution.
(b) Step 2 - If Step 1 does not resolve the dispute then the CEO of each party shall meet and attempt to agree a solution.
15.2 The parties agree that any disagreement or dispute arising out of or in connection with this Agreement shall be governed by the law of England and Wales and the parties shall irrevocably submit to the exclusive jurisdiction of the English courts.
Latest update: 15 February 2024