DevElite Limited: End User Agreement for oneminutepoll.com

1 THE END USER AGREEMENT

1.1 This End User Agreement is a legal agreement between you as a registered user (‘Registered User’ as defined at Clause 2.3 or ‘you’) of this oneminutepoll.com web site (‘Web Site’) and DevElite Limited (‘DevElite’).

1.2 DevElite owns and controls the Web Site which offers for sale a subscription service (the ‘Service’) to use survey creation and response capture software (the ‘Software’). The Service allows the Registered User to create, test and distribute a web based survey (‘Survey’). The Survey may be distributed by copying the generated HTML code to the Registered User’s website. The service also captures the responses of the survey entered by the survey participants, and allows the Registered User to view such responses in a variety of formats.

1.3 Any goods and services (“Merchandise”) offered for sale by companies other than DevElite (“Third Party Content Providers”) via third party web sites linked to this Web Site are subject to separate terms and conditions between you and the applicable Third Party Content Provider. You acknowledge that the applicable Third Party Content Provider (and not DevElite) is solely responsible for the fulfilment of orders for any Merchandise and for its quality, suitability, and fitness for purpose. Any disputes or questions relating to the Merchandise must be directed to the Third Party Content Provider in question and you acknowledge that DevElite shall have no responsibility, obligations or liability in relation to the Merchandise.

2 SUBSCRIPTION

2.1 DevElite shall have absolute and sole discretion in awarding subscriptions to use the Service, such subscription shall only be awarded upon receipt by DevElite of:

2.1.1 a valid and complete registration form;

2.1.2 the full amount of the Fee (as defined at Clause 3.4 below); and

2.1.3 Acceptance of this End User Agreement,

(‘Valid Registration’).
5 2.2 DevElite shall confirm whether subscription to the Service has been awarded (‘Confirmation’), within a reasonable time after Valid Registration, via e-mail to the e-mail address supplied in the registration form.

2.3 Upon Confirmation of subscription to the Service, you shall be considered a Registered User and be entitled to use the Service in accordance with the terms and conditions of this End User Agreement, and in accordance with any further or explanatory conditions set out in the Confirmation e-mail.

3 THE TERM AND FEE

3.1 Subject to Clause 9, DevElite will provide the Service to the Registered User from the date of Confirmation until the expiry of a period of one (1) calendar year, unless you request renewal upon the terms in effect at that time, within thirty (30) days of notice being sent by DevElite to you (the ‘Term’), and DevElite awards subscription, in accordance with Clause 2.

3.2 If the Registered User no longer wishes to receive the Service, following expiry of the Term, and fails to renew the subscription before expiry of the Term, the data captured from the Survey will remain accessible to you for a period of a further thirty (30) days following the expiry of the Term (the ‘Grace Period’). Each Survey and all data captured from them will be deleted upon expiry of the Grace Period.

3.3 There are currently four levels of subscription (‘Level of Subscription’) available for use of the Service:

3.3.1 Bronze Subscription

3.3.2 Silver Subscription

3.3.3 Gold Subscription

3.3.4 Platinum Subscription

3.4 The charge for receipt of the Service will depend upon the Level of Subscription you require (the ‘Fee’). The Fee will be detailed on the registration form and may be changed from time to time, for any reason whatsoever. Any updated Fee will become payable upon renewal of the subscription, in accordance with Clause 3.1 and subject to the Level of Subscription required.

3.5 Subject to Clause 3.6 below, the Fee is non-refundable upon cancellation of the Service by you during the Term. The data captured via the Survey will remain accessible by you during the Grace Period, effective from the date of receipt of notification, to DevElite, requesting cessation of the Service.

3.6 Cancellation of the Service may occur within the first seven (30) days after Confirmation is sent by DevElite to you (the ‘Cooling Off Period’). You will be entitled to a refund of the full amount of the Fee upon cancellation within the Cooling Off Period.

4 THE SERVICE

4.1 During the Term of this End User Agreement, in consideration of the Fee and in compliance with the terms of this End User Agreement, the Registered User is hereby granted a non-exclusive, non-transferable, royalty-free licence to use the Web Site and the Software to create Surveys, and accept and analyse survey responses, subject to the Level of Subscription (the ‘Licence’) but for no other reason whatsoever.

4.2 The Service shall include use of the materials on the Web Site (including but not limited to: Software, documentation, text, pictures, sounds, graphics, articles, video or audio clips, and advertising material) (‘DevElite Material’) to create one or more Surveys, manage the data captured and obtain help and support information as required.

4.3 The Registered User is entitled to view, copy, print, access, download and transmit (for the purposes expressly permitted in this End User Agreement) and store the DevElite Material, provided that you do not :

4.3.1 remove any notices relating to the ownership of copyright or other intellectual property right in the DevElite Material;

4.3.2 modify, translate, reverse engineer, reproduce, decompile, disassemble (except as expressly permitted by law) or create derivative works of any of the DevElite Material;

4.3.3 rent, lease, sub-licence, loan, copy or give or transfer any rights in the DevElite Material in any form, to any person or entity without the prior written consent of DevElite which may be withheld by DevElite in its absolute discretion.

4.4 Any product, process or technology referred to in the DevElite Material may be subject to other intellectual property rights of DevElite and are not made available hereunder.

5 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

5.1 Notwithstanding the limited rights granted to you in accordance with Clause 4, DevElite or other third parties which licence such material to DevElite, retain their ownership, title and interest in the intellectual property rights contained in the DevElite Material including but not limited to copyright, database rights, trade marks, patents, service marks, design rights (whether registerable or otherwise) know-how, trade or business names, domain names, goodwill associated with any of the foregoing and other similar rights or obligations whether registerable or not in any jurisdiction in the world.

5.2 DevElite may have trademarks or service marks in its name. Any other product names and company logos mentioned in the DevElite Material or Third Party Content provided or available on this Web Site may be the trademarks of their respective owners.

5.3 The Registered User shall have all rights over the User Generated Content and data captured via use of the Survey. DevElite will not use such content or the data captured from the Survey unless you authorise or request DevElite to do so.

5.4 The Registered User grants to DevElite, a non-exclusive, non-transferable, royalty-free licence to use the User Generated Content and the data captured via the Survey in order to provide the Services to you but for no other reason whatsoever, and only at your request, as set out in Clause 5.3.

6 OBLIGATIONS OF REGISTERED USER

6.1 The Registered User may use the Web Site and the Services for the purposes and in accordance with the terms and conditions set out in this End User Agreement only.

6.2 You agree that you are responsible for the security and use of any passwords needed to access or use the Web Site or any Service. You must take all reasonable steps to ensure that the passwords are kept confidential and secure and you must not allow any unauthorised person to access the Web Site or any of the Services using your e-mail address and password.

6.3 You agree that DevElite has no prior knowledge of how you intend to use the Survey. You will therefore assume all responsibility for the design of the Survey, the use made of it by the participants and the data captured from use.

6.4 You agree that you will not use the Web Site or any of the Services as follows:

6.4.1 to send, receive, upload, download, store, use, distribute or publish any material that is offensive, abusive, indecent, defamatory, obscene, or in breach of any other person’s Intellectual Property Rights or breaches any obligation of confidentiality by which you are bound;

6.4.2 to send or distribute multiple unsolicited e-mails or messages (‘Spam’) or to cause any other person annoyance, inconvenience or worry;

6.4.3 for any purposes connected to any business (except for commercial Survey voting) including sending any unsolicited advertisements or promotional material.

6.5 You agree to indemnify DevElite against any claims, costs, expenses or legal proceedings caused as a result of your use of the Web Site or Services in contravention of Clause 6. Further, in these circumstances, DevElite shall be entitled to treat the contravention as a material breach of this End User Agreement and terminate the End User Agreement and any access permission granted to you by DevElite forthwith, without notice and without a Grace Period.

7 OBLIGATIONS OF DEVELITE

7.1 DevElite will provide the Services to the Registered User with reasonable skill and care, and the Software shall be of a satisfactory quality and reasonably fit for the purpose.

7.2 DevElite undertakes to use commercially reasonable endeavours to prevent breaches of security of the Web Site and to use reasonable endeavours to ensure that any DevElite affiliates comply with this Clause 7.2.

7.3 DevElite makes no representation or warranty that the Web Site or the Services will be accessible, or useable by you or error free.

7.4 DevElite makes no representation or warranty that the Survey designed by you will meet any of your requirements, nor as to the quality or quantity of the Survey responses or the data captured via the Survey.

7.5 DevElite uses reasonable efforts to include accurate and up-to-date information on the Web Site. The information, documents or other items provided or available on the Web Site could include technical inaccuracies or typographical errors. DevElite makes no warranties or representations as to its accuracy. DevElite assumes no liability or responsibility for any errors or omissions in the content of the Web Site.

7.6 DevElite reserves the right without notice to you, to remove any DevElite Material from the Web Site or to suspend or alter the operation of the Web Site or any of the Services, at its sole discretion or for legal or technical reasons. DevElite will give as much notice as possible prior to taking any of the actions addressed in this Clause 7.6, but prior notice may not always be feasible for a variety of reasons. DevElite may make improvements and/or changes to the information or documents provided or available on the Web Site at any time.

7.7 DevElite reserves the right without notice to you, to remove, suspend or alter the operation of any of the Surveys, for any reason whatsoever.

8 CONSENT TO USE PERSONAL INFORMATION

8.1 For the purposes of the Data Protection Act 1998, you acknowledge that in the course of registering and using this Web Site and the Services, certain personal information or data will be captured electronically or otherwise and be transmitted to DevElite. By accepting this End User Agreement, you expressly agree to transfer such personal information or data to DevElite to use, store and process the personal information in accordance with the provisions set out in the DevElite Privacy Policy.

8.2 In addition, you expressly consent to the transfer of your personal data to any affiliate of DevElite, where such processing is necessary in order to fulfil your request for Service, at the registration stage. You acknowledge that such affiliate may have their own privacy policy, or terms of use, in operation and agree to read such other policies before making use of a service offered by a DevElite affiliate.

8.3 You acknowledge that in the course of completing the registration form for Services from DevElite, certain personal data about your employees, agents or subcontractors may be captured electronically or otherwise by DevElite. You warrant that if this is the case, you have obtained the express consent of any employees, agents or subcontractors to the transfer of their personal data to DevElite to use, store and process such personal information for the purposes set out in the DevElite Privacy Policy, including where such personal data forms part of the Survey and is posted to the Web Site for access by participants inside and outside of the European Economic Area.

8.4 You agree to indemnify DevElite against any claims, costs, expenses or legal proceedings caused as a result of your failure to obtain any such consents necessarily required in order to comply with the Data Protection Act 1998, and as specified in Clause 8.3 above.

9 TERMINATION

9.1 Subject to the Grace Period, this End User Agreement will remain in force until the earlier of the following events :

9.1.1 expiry of the Term in accordance with Clause 3.2;

9.1.2 cancellation of the Service by you, in accordance with Clause 3.4;

9.1.3 breach of any of the terms of the Licence granted to you in accordance with Clause 4; or

9.1.4 termination of this End User Agreement by DevElite, with or without notice to the Registered User.

9.2 In the event that this End User Agreement is terminated for any of the reasons stated above, you agree to comply with the following obligations :

9.2.1 the Licence granted to you in accordance with Clause 4, shall be terminated forthwith and you shall have no further right to use the DevElite Material;

9.2.2 you must delete or destroy any of the DevElite Material stored by you in electronic or hard copy form as soon as reasonably practicable, including any hyperlink references contained on the Registered User’s Site or Email; and

9.2.3 upon termination of the Grace Period, you will have no further rights to access or use the Web Site or the Services; limited rights of access being granted during the Grace Period for the purpose of access to the data captured via the Survey (or Surveys) only.

10 DISCLAIMERS

10.1 The Registered User accepts that it is reasonable that, to the maximum extent permitted by law, all representations, conditions, warranties and other terms whether implied by statute, common law, through a course of dealing or otherwise are excluded.

10.2 Nothing in this End User Agreement limits DevElite’s liability to you for death or personal liability caused by DevElite’s negligence.

10.3 Subject to Clauses 10.2 and 10.4, DevElite will not be liable to you for any of the following kinds of loss or damage: special, incidental, indirect or consequential loss or damage caused by errors or omissions in the information or other items provided or available herein, whether such errors or omissions result from negligence, accident or any other cause; loss of profits; or loss or damage to data.

10.4 To the extent that DevElite is deemed by a court of competent jurisdiction to have any liability to you in contract, tort (including negligence) or otherwise in relation to this Web Site or the Services, DevElite’s entire liability shall be limited to the value of the Fee paid by you at the registration stage, in order to subscribe to the Service, for any and all incidents during each successive Term.

10.5 This Web Site may contain links to third party web sites which are controlled and operated by parties other than DevElite. The links will let you leave the Web Site. DevElite is not responsible for the content of any linked web site or any link contained in a linked web site. DevElite is providing these links only as a convenience. The inclusion of any link on the Web Site does not imply endorsement by DevElite of the linked web site or products or services offered via the linked web site. If you decide to access linked third party web sites, you do so entirely at your own risk.

11 NOTICES

11.1 The Registered User may send a legal notice to DevElite, or any questions you may have concerning the End User Agreement by contacting DevElite on support@oneminutepoll.com. Such notices will be effective within three (3) days of receipt by DevElite.

11.2 DevElite may send you notice by general notice on this Web Site or by e-mail to your e-mail address as entered on the registration form. Such notice will be effective one (1) day from the date it was sent or posted on the Web Site.

12 GENERAL

12.1 DevElite reserves the right to add to or change the terms of this End User Agreement in its sole discretion without prior notice to you. All changes to the End User Agreement will be effective in accordance with Clause 11. DevElite will provide notice of the changes to the End User Agreement for a reasonable time after posting the amended End User Agreement on the Web Site. Your continued use of the Web Site or the Services following DevElite’s posting of such changes will be regarded by DevElite as acceptance of the amended End User Agreement, during the Term. If you do not agree to be bound by the amended End User Agreement, you should send an e-mail to DevElite (at the e-mail address given at the bottom of this internet page) requesting cancellation of the Service

12.2 If any part of this End User Agreement is held by a court of competent jurisdiction to be unenforceable, the validity of the remainder of this End User Agreement will not be affected.

12.3 If DevElite is unable to perform any obligation under this End User Agreement because of a matter beyond its reasonable control (including but not limited to); fire, flood, war, explosion, civil disorder, or other disasters or governmental laws or regulations imposed after the fact, or events beyond the reasonable control of DevElite, DevElite will have no liability for that failure to perform.

12.4 Any person who is not a party to this End User Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this End User Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

12.5 This End User Agreement is governed by the laws of England, and is subject to the exclusive jurisdiction of the English Courts. You agree to waive any argument that the English Courts are not a convenient forum to hear or determine any dispute or other matter arising under or in connection with this End User Agreement.