Services Agreement

Terms of Use

Last Updated: 18 October 2023 (Version 1.1.0)

By entering into an Order Form referencing this Terms of Use (the "Agreement"), you: (i) represent that you have the power and authority to enter into this Agreement on behalf of the company that is listed on the relevant Order Form (the “Customer”); and (ii) agree to bind Customer to this Agreement. “Blinktime” means Blinktime Limited. Customer and Blinktime (together, the “Parties” and each a “Party”) agree as of the date of last signature on the Order Form (the “EffectiveDate”):

Services‍
1. Provision of Services. Blinktime shall provide the Services to Customer during the Term. Blinktime grants to Customer a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Services during the Term for Customer’s internal business purposes.
2. Affiliates. An Affiliate of the Customer may purchase Services by entering into an Order Form referencing this Agreement and, in such cases, all references to “Customer” in this Agreement shall be construed as references to the relevant Affiliate for the purposes of that Order Form.
3. Maintenance. Blinktime will use commercially reasonable efforts to notify Customer in advance of any maintenance services that may cause a material disruption to the Software.
4. Updates. Blinktime may release updates to the Software and Customer shall install such updates in accordance with Blinktime’s reasonable instructions and within a reasonable timeline.
5. Data and security. Blinktime shall implement and maintain commercially reasonable administrative, organisational and technical safeguards for the protection, confidentiality and integrity of Customer Data.
Customer obligations
1. Customer will not, and will not permit its Users or any third party, to:
  1. reverse-engineer, disassemble or otherwise reduce to human-perceivable form all or any part of the Services;
  2. copy, modify, create derivative works from, republish or distribute all or any portion of the Services in any form or by any means except to the extent expressly permissible under this Agreement;
  3. access all or any part of the Services in order to build a product or service that competes with the Services;
  4. license, sell, rent, lease, transfer, assign or otherwise commercially exploit the Services;
  5. use the Services in a manner that is non-compliant with this Agreement.
2. Customer will use all reasonable efforts to prevent any unauthorised access to, or use of, the Services.
Representations and warranties
1. Mutual warranties. Each party represents and warrants that (a) it has the authority to enter into this Agreement; and (b) it shall comply with all laws, rules and regulations applicable to the exercise of its rights and performance of its obligations under this Agreement.
2. Blinktime warranties
  1. Services warranty. Blinktime warrants during the Term that the Service shall perform in material compliance with the Documentation. For any breach of the foregoing, Customer’s sole and exclusive remedy shall be Blinktime correcting the breach such that the Services conform to the warranty and, if Blinktime is unable to do so within a commercially reasonable period of time following receipt of written notice of the breach, Customer shall be entitled to terminate the Agreement and receive a pro-rated refund of any prepaid, unused fees in respect of the remaining portion of the Term.
  2. Malicious code. Blinktime warrants that to the best of its knowledge the Services are free of software viruses, worms, trojan horses or any other malicious code.
3. Customer warranty. Customer represents and warrants that it has all necessary permissions to transfer Customer Data to the Services so that Blinktime may lawfully use, process and transfer the Customer Data in accordance with this Agreement in order to provide the Services.
4. DISCLAIMER. Except as expressly provided for in this agreement, the Services are provided “as is” and Blinktime disclaims any and all warranties, express or implied, including but not limited to the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that Blinktime does not warrant that the software will be error-free. Blinktime will not be responsible for, and disclaims all liability related to, delays, delivery failures, interception, alteration, or other damage resulting from matters outside of its control, including problems relating to the use of the internet, computing devices, transmission of electronic communications over the internet and/or other networks, and third party hosting service providers.
Fees and payment‍
1. Payment of Fees. Unless otherwise agreed in an Order Form, the Fees are payable annually in advance within thirty (30) days of receipt of an undisputed invoice. If Customer disputes any part of an invoice, Customer shall notify Blinktime within fourteen (14) days of receipt of such invoice.
2. Users. Customer may only reduce the number of Users prior to a Renewal Term (as defined in Section 5.1 below) with effect at the beginning of such Renewal Term. Blinktime may periodically calculate the total numbers of Users and reserves the right to invoice Customer for any Users that exceed the number of Users purchased by Customer on a pro-rata basis for the remainder of the applicable Term.
3. Taxes. All Fees are charged to Customer exclusive of taxes. Except for those taxes based on Blinktime’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement.
Term and termination‍
1. Term. This Agreement commences on the Effective Date and shall remain in effect until all Order Forms have expired or been terminated, or this Agreement has been terminated in accordance with its terms. The initial Term will be specified in each Order Form and shall automatically renew for a subsequent term (“Renewal Term”) unless otherwise stated in the relevant Order Form.
2. Termination for cause. Either party may terminate this Agreement and any Order Form if the other party: (a) is in material breach of this Agreement and fails to remedy such breach within 30 days following written notice of such breach; or (b) becomes the subject of insolvency proceedings and the proceedings are not dismissed within 60 days.
3. Termination without cause. Either party may terminate this Agreement without cause upon 30 days written notice to take effect at the end of the then-current Term.
4. Effect of termination. Upon termination of this Agreement, Customer and its Users shall immediately cease all use of the Services. Upon termination by Customer under Section 5.2, Blinktime shall refund to Customer any prepaid, unused Fees in respect of the period from termination to the end of the Term. Upon termination by Blinktime under Section 5.2, Customer shall immediately pay any unpaid Fees in respect of the period from termination to the end of the Term.
5. Suspension. Blinktime may suspend Customer’s access to the Services if: (i) an invoice is more than 30 days overdue; or (ii) Customer is in breach of Section 2. Blinktime will make commercially reasonable endeavours to provide Customer with prior notice of suspension.
Confidentiality
1. Confidential Information. During the Term, each party may make available to the other party information that is identified as confidential or should be reasonable understood by the receiving party as confidential (“Confidential Information”). For the avoidance of doubt, Confidential Information includes without limitation this Agreement, the Order Forms, Customer Data, business plans, product roadmaps, customer lists, projects, financial information, fee structures and technical documentation.
2. Exceptions. Confidential Information does not include information that: (i) is or becomes publicly available without breach of this Agreement by the receiving party; (ii) was known to the receiving party prior to its disclosure by the disclosing party; (iii) is independently developed by the receiving party without reference to any Confidential Information of the disclosing party; or (iv) was lawfully received by the receiving party from a third party under no obligation of confidentiality.
3. Protection of Confidential Information. Except as otherwise permitted under this Agreement or as required by law, neither party will disclose to any third party any Confidential Information of the other party without the other’s prior written consent. Each party will safeguard the other party’s Confidential Information with at least the same standard of care that it uses to safeguard its own similar information but in any case no less than a reasonable level of care. Either party may disclose the other party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents or professional advisors (“Representatives”) who have a strict need to know such Confidential Information in order to perform this Agreement, provided any such Representatives are under a duty of confidentiality in respect of such Confidential Information at least as protective as this Section 6. Either party may disclose Confidential Information of the other party if legally required to do so in relation to any legal proceeding, provided that in such event it will, unless prohibited by law, notify the other party prior to such disclosure.
4. Equitable relief. Each party acknowledges that a damages claim may be an inadequate remedy for breach of this Section 6 and that, in addition to any other applicable remedy at law, the parties may seek equitable relief from a competent court.
Ownership, Feedback and Services Data
1. Ownership of Customer Data. Customer owns all right, title, and interest in the Customer Data. Customer grants Blinktime a worldwide, non-exclusive license during the Term to host, copy, access, process, transmit and display Customer Data to maintain, provide and improve the Services and otherwise perform under this Agreement.
2. Ownership of the Services. Blinktime owns all right, title, and interest in the Services, including any customisations, modifications and enhancements, whether as a result of Feedback (as defined below) or otherwise, and the Documentation.
3. Services Data. Blinktime owns the Services Data. Nothing in this Agreement shall prohibit Blinktime from utilising the Services Data for the purposes of operating Blinktime’s Business, provided that the Services Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or its Users to any third party.
4. Feedback. Customers or its Users may submit comments, suggestions or other feedback relating to Blinktime’s services (“Feedback”). Blinktime may freely use Feedback in connection with any of its services without restriction or obligation to Customer or Users, provided that Blinktime will not identify Customer or any User as the provider of such Feedback.
Indemnification
1. By Blinktime. Blinktime shall defend Customer and its Affiliates, their employees, officers and directors (together, the “Customer Indemnified Parties”) from and against IP Claims and shall indemnify Customer against any damages, reasonable legal fees and costs finally awarded against Blinktime as a result of an IP Claim.
2. IP Claims. If the Service becomes the subject of an IP Claim, then Blinktime may in its sole discretion: (i) obtain the right, at Blinktime’s expense, for Customer to continue using the Services; (ii) provide a non-infringing replacement service with substantially equivalent functionality as the Services; (iii) modify the Services so they are no longer infringing; or (iv) if the foregoing limbs (i) to (iii) are not viable, terminate the relevant Order Form and provide Customer with a prorated refund any prepaid, unused Fees. Sections 8.2 and 8.3 state Blinktime’s sole liability and the Customer Indemnified Parties’ exclusive remedy for IP Claims. “IP Claim” means any third party claim, action or demand alleging that Customer’s authorised use of the Services infringes or misappropriates a third party’s intellectual property rights, which does not arise out of Customer’s or its Users’: (i) use of the Service other than as permitted under this Agreement; or (ii) use of the Service following unauthorised modification by Customer or Users; or (iii) in combination with products, services or data not provided to Customer by Blinktime.
3. Conduct of claims. Blinktime’s obligations under Sections 8.1 are subject to it receiving from the indemnified party: (i) prompt notice of the relevant claim; (ii) reasonable co-operation at the indemnifying party’s expense; (iii) sole authority to defend or settle any claim, provided that it does not settle any claim in a manner that imposes any material legal or financial liability upon the indemnified party without the indemnified party’s prior written consent.
Limitation of liability
1. Exclusions. Except for a party’s breach of Section 6 (Confidentiality), in no event shall either party or its affiliates have any liability to the other party for any lost profits, loss of reputation, lost revenues, or any indirect, special, incidental or consequential damages, however caused, whether in contract, tort or under any other theory of liability and whether or not a party has been advised of the possibility of such damages.
2. Limitation of Liability. Subject to Section 9.1, in no event shall either Party’s or its Affiliates’ maximum aggregate liability arising out of or related to this Agreement (including any order form that references this Agreement), whether in contract, tort, or under any other theory of liability, exceed fees paid or payable in the twelve months immediately preceding the event first giving rise to liability.
3. Special claims. Subject to Section 9.1 and notwithstanding Section 9.2, the maximum aggregate liability for a Party’s breach of Section 6 (Confidentiality) or its indemnification obligations under Section 8 (Indemnification) shall be three (3) times fees paid or payable in the twelve months preceding the event first giving rise to liability.
4. Excluded claims. Nothing in this Agreement shall limit either party’s liability for: (i) death or personal injury caused by a party’s negligence; (ii) fraud or fraudulent misrepresentation; and (iii) any other liability that cannot be excluded or limited by law.
Miscellaneous
1. Applicable laws. In performing their obligations under this Agreement and any Order Form, the parties will each comply with all applicable laws and regulations.
2. Force majeure. Blinktime will have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that Customer is notified as soon as reasonably practicable of such an event.
3. Amendments. Any change to this Agreement shall only be effective if agreed by the parties in writing.
4. Waiver. No failure or a delay to exercise a right or remedy under this Agreement shall be construed as a waiver of any right or remedy that arises in the future.
5. Severance. If any provision of this Agreement is held by a competent court to be invalid, the other provisions shall remain in force. If any invalid provision would be valid if some part of it were deleted, such part shall be deemed deleted in such a manner that the remainder of the provision is valid.
6. Entire agreement. The Agreement, and any documents referred to in it, constitute the entire agreement between the parties and supersede any previous agreement or understanding between them relating to the subject matter set out here.
7. Assignment. Blinktime may at any time assign or otherwise transfer its rights or obligations under this Agreement in connection with a sale of substantially all of its business or assets. In all other respects, neither party will assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
8. Marketing. Blinktime may use Customer’s name and/or logo on its website and promotional materials.
9. Third party rights. The Agreement does not confer any rights to any party other than the Parties and their Affiliates, successors and permitted assigns.
10. Governing law. This Agreement and any Order Form shall be governed by and construed in accordance with the laws of England and Wales.
11. Jurisdiction. Any disputes (including non-contractual disputes) arising out of this Agreement or any Order Form shall be held in the courts of England and Wales.
Definitions
1. Affiliate: means, with respect to either Blinktime or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with Blinktime or Customer, respectively. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. Agreement: means this Terms of Use Agreement, including any Order Form that incorporates this Terms of Use Agreement by reference.
3. Customer Data: means data submitted by Users through the Services.
4. Data Protection Agreement: means the data protection agreement at Schedule 1.
5. Documentation: means the software specification and related technical documentation made available by Blinktime.
6. Fees: means the fees for the Services as set out in an Order Form.
7. Order Form: a validly executed order form referencing this Agreement.
8. Services: means the services specified in an Order Form, including but not limited to the Software and support services.
9. Services Data: means anonymised and aggregated data derived from Customer’s or Users’ use of the Services. For the avoidance of doubt, Services Data does not include any Personal Data.
10. Software: means Blinktime’s proprietary software, whether cloud-hosted or for local installation, made available to Customer pursuant to an Order Form.
11. Term: means the term specified in an Order Form and any Renewal Term(s) during which Blinktime will provide Services to the Customer.
12. Users: means employees or personnel of the Customer who are authorised to use the Services.

Schedule 1 : Data Protection Agreement

This Data Protection Agreement (“DPA”) forms an integral part of the Agreement between the parties under which Blinktime provides services to the Customer (an “Agreement”).

Definitions and Interpretation. Any capitalised terms used in this DPA but not defined shall have the meaning given to them in the Agreement. Unless the context requires otherwise, the following definitions and rules of interpretation apply in this DPA:
1. “Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing” shall have the meaning as defined in the Data Protection Legislation, and their cognate terms shall be construed accordingly;
2. “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time which applies to a party including the EU GDPR, the UK GDPR and the UK Data Protection Act 2018, in each case as amended, updated or replaced from time to time;
3. “Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation;
4. “EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).
5. "Existing Sub-processor" means each Sub-processor appointed by Blinktime to Process Personal Data as at the Effective Date;
6. "IDTA" means the International Data Transfer Agreement, as issued under Section 119A(1) of the Data Protection Act 2018, and in force 21 March 2022, as may be updated by the Information Commissioner's Office from time to time;
7. "New Sub-processor" means any Sub-processor to which Blinktime wishes to delegate the Processing of Personal Data;
8. "Restricted Transfer" means (i) where the EU GDPR applies, a transfer of Personal Data from the European Economic Area to a country that is not subject to an adequacy decision by the European Commission; and (ii) where the UK GDPR applies, a transfer of Personal Data from the United Kingdom to a country that is not subject to an adequacy decision by the UK’s Information Commissioner;
9. "Sub-processor" means any Processor appointed by or on behalf of Blinktime to Process Personal Data; and
10. “UK GDPR” means the EU GDPR as incorporated into UK law by the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal) Act 2020).
Mutual obligations
1. The parties acknowledge and agree that for the purposes of the Data Protection Legislation, in respect of the Processing of any Personal Data by Blinktime under the Agreement, the Customer is the Controller and Blinktime is the Processor of such Personal Data and the Processing activities undertaken by Blinktime are set out in Annex A.
2. Each party will comply with all applicable requirements of the Data Protection Legislation when Processing Personal Data.
3. The Customer instructs Blinktime (and authorises Blinktime to instruct each Sub-processor) to Process Personal Data, including to transfer Personal Data outside of the United Kingdom, as reasonably necessary to provide the Services.
Blinktime’s Processing obligations
1. To the extent that Blinktime Processes any Personal Data on behalf of the Customer in connection with Blinktime's performance of the Services, Blinktime shall:
  1. only Process such Personal Data in accordance with the written instructions of the Customer as set out in the Agreement unless Blinktime is required by applicable law to otherwise Process that Personal Data, in which case Blinktime shall inform the Customer of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest;
  2. require all personnel who have access to and/or Process Personal Data to keep the Personal Data confidential;
  3. require all personnel who have access to and/or Process Personal Data to keep the Personal Data confidential;
  4. taking into account the state of the art, implement appropriate organisational and technical measures to satisfy its oblgiations under Article 32 GDPR;
  5. notify the Customer without undue delay if it suffers a Personal Data Breach providing the Customer with sufficient information which allows the Customer to meet its obligations to report a Personal Data breach under the Data Protection Legislation;
  6. notify the Customer without undue delay if it receives any Data Subject Request relating to the Personal Data, and shall: (i) not respond to the Data Subject Request without the Customer’s prior written consent and in accordance with the Customer’s instructions; and (ii) shall provide such assistance as the Customer may reasonably require in respect of such Personal Data in order for the Customer to comply and respond to the Data Subject Request in accordance with the Data Protection Legislation;
  7. on the Customer's written request, provide reasonable assistance to the Customer in inputting into and carrying out data protection impact assessments and prior consultations with supervisory authorities, which the Customer reasonably considers to be required under the Data Protection Legislation in each case solely in relation to the Processing of Personal Data by Blinktime under the Agreement and taking into account the nature of the Processing and information available to Blinktime.
Sub-processors
1. The Customer provides general authorisation to Blinktime's use of Sub-processors to perform Processing activities with Personal Data on behalf of the Customer in accordance with this paragraph 4.
2. Annex B to this DPA lists Existing Sub-processors that are currently engaged by Blinktime. Where Blinktime engages a New Sub-processor, or makes a change to an Existing Sub-processor, Blinktime will notify the Customer and if Customer does not object to the New Sub-Processor within 14 days of notification, the Customer will be deemed to have consented to such appointment.
3. If the Customer raises objections to Blinktime's appointment of a new Sub-processor on reasonable grounds, Blinktime shall either (i) alter its plans to use the Sub-processor with respect to the Processing of Personal Data; or (ii) take corrective steps to remove the Customer’s objections. If none of the above options are reasonably available and such objections cannot be reasonably resolved by the parties within thirty (30) days of the objection by the Customer, either party may elect to terminate the Agreement on thirty (30) days' written notice to the other party.
4. In relation to each Sub-processor appointed by Blinktime, Blinktime shall:
  1. ensure that such Sub-processor is subject to a written agreement which imposes on it binding contractual obligations which are equivalent to the terms imposed on Blinktime under this DPA to the extent required by Data Protection Legislation; and
  2. ensure that Blinktime shall be liable for the acts and omissions of such Sub-processors in relation to the Processing of such Personal Data.
Restricted transfers. With respect to any Restricted Transfer from Blinktime to a Sub-processor, Blinktime shall not cause or permit such transfer without ensuring that the IDTA is entered into as required by applicable Data Protection Legislation, or an alternate safeguard is implemented pursuant to Article 46 of the UK GDPR.
Deletion. Upon termination or expiry of the Agreement, at Customer’s request, Blinktime shall return or destroy all such Personal Data, unless Blinktime is required by applicable laws to store the Personal Data.
Audits. Blinktime shall make available to Customer all information reasonably necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits conducted by Customer, solely to the extent required by the Data Protection Legislation and no more than once every twelve months.
Obligations of the Customer. The Customer shall ensure that it has all the necessary licences, permissions, consents, authority and notices in place to enable lawful transfer of Personal Data to Blinktime for the duration and purposes of the Agreement.

Annex A - Details of the Processing

Nature and Purpose of Processing. The nature and purpose of the Processing are as set out in the Agreement.

‍Subject Matter and Duration of Procession. The subject matter of the Processing of Personal Data is set out in the Agreement and Blinktime will Process Personal Data for the Term of the Agreement.

‍Categories of Data Subjects. Users of Blinktime's Software and Services.

‍Type of Personal Data. The names and email addresses of Users of Blinktime’s Software and Services.

Annex B - Approved Sub-Processors

Microsoft Azure

Cloud Hosting

Ireland

Mailjet

Email communications

Germany and Belgium

Retool

Internal tooling for the administration of the service