Terms and Conditions
Last update 18 May 2022
Yabble Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF YABBLE SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH UNDER CLAUSE 1 OF THIS AGREEMENT.
BY ACCEPTING THIS AGREEMENT, BY (1) CREATING A CUSTOMER ACCOUNT, (2) CLICKING A BOX INDICATING ACCEPTANCE, (3) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
YABBLE’s direct competitors are prohibited from accessing the Services, except with YABBLE’s prior written consent.
This Agreement was last updated on May 18, 2022. It is effective between Customer and YABBLE as of the date of Customer’s accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement and the Order Form.
“Available Sample” means the number of Sample who are able to participate in a particular Commissioned Project at the time of the request to participate.
“Beta Services” means YABBLE services or functionality that may be made available to any Customer to try at its option which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Company” means The Thinking Studio Limited (trading as Yabble), registered company number 4402982, having its registered office in Hamilton.
“Commissioned Project” means an agreement to provide research services or products as detailed in the Order Form or as otherwise agreed by the parties in writing.
“Complete or Completes” means the number of Sample who have fully participated and finished a project.
“Confidential Information” means all information, data or material of whatsoever nature in any form, which either party, discloses to the other pursuant to this Agreement, which by its nature is confidential, is designated as confidential and/or which the recipient party knows or reasonably ought to know is confidential. It shall not include any information or materials which:
- is in or enters into the public domain (other than as a result of disclosure by the receiving party or any third party to whom the receiving party disclosed such information);
- is already in the lawful possession of the receiving party prior to the disclosure by the disclosing party;
- is subsequently obtained by the receiving party from a third party who is free to disclose them to the receiving party; or
- is required to be disclosed by law or regulatory authority.
“Content” means information obtained by YABBLE from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates).
“Customer Data” means any electronic data and information, including Personal Information, but excluding Content.
“Documentation” means the applicable Service’s documentation and its usage guides and policies, as updated from time to time, accessible via request to firstname.lastname@example.org
“Intellectual Property Rights” means all brand names, trademarks, service marks, trade names, logos, copyright, patents, licences, designs, know-how, trade secrets, inventions, research insights, research data and all other similar property rights.
"Hey Yabble" means AI software for analyzing unstructured data hosted in the YABBLE platform
"Hey Yabble Credits" means a unit of value that can be purchased for analyzing Content or Customer Data within the YABBLE platform
"Licenses" means permission given to a single user to access to the YABBLE platform
“MyPanel” means The Company’s customer community panel offer and the associated management software accessed via The YABBLE Platform.
“Panel” means the list of YABBLERS and their details that they provide on registration to YABBLE and that are recorded in an online database held by the Company.
“Personal Information” has the meaning given to that term in the Privacy Act 1993 and its successor legislation, the Privacy Act 2020.
"Products" mean YABBLE software which assists in the creation or analysis of data for market research.
“Pricing Model” means the price at which the Subscription, Licenses, Products, MyPanel, Hey Yabble or Purchased Services are charged by the Company. Prices for the Products and Purchased Services are detailed in the Order Form or within the YABBLE Platform at the time of purchase.
“Privacy Breach” has the meaning given to that term in section 112(1) of the Privacy Act 2020.
“Order Form” means an ordering document or online order specifying the Subscription, Licenses, Products, Purchased Services, MyPanel or Hey Yabble to be provided under this Agreement, including any addenda and supplements. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
“Purchased Services” means Services that a Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal.
“Sample” means the YABBLERS who have opted in to join the Panel as well as external sample provided by 3rd party panel providers who are able to be accessed by Customers via the YABBLE Platform in accordance with this Agreement.
“Sample Fee” means a variable fee payable by a Customer to the Company in accordance with the Pricing Model.
“Services” means the subscription, products, services, technology, sampling, samples and advice that are ordered by Customer under an Order Form, and made available online by YABBLE, including associated YABBLE offline or mobile components, as described in the Documentation. “Services” exclude Content.
"Subscription" means a fee payable by a Customer for monthly access to the YABBLE platform. Subscriptions are automatically renewed each month, on the monthly anniversary date of joining until cancelled.
“YABBLE” means the Company.
“YABBLE Platform” means the technology that allows the Customer to access the Services.
“YABBLER” means an individual consumer who has joined YABBLE Platform and has not opted out.
2. YABBLE RESPONSIBILITIES
2.1 Provision of Purchased Services. YABBLE will (a) make the Purchased Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable YABBLE standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for planned downtime (of which YABBLE shall give advance electronic notice).
2.2 Customer Data. Customer is responsible for all Customer Data collected, inputted or submitted into the YABBLE Platform by Customer. Any Customer Data stored by YABBLE on the YABBLE Platform is stored entirely at Customer’s risk. YABBLE will ensure the YABBLE Platform has appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, YABBLE will make all Customer Data held by YABBLE available to Customer for export or download. After the expiry of the 30-day period, YABBLE will have no obligation to maintain, store or provide any Customer Data to Customer, and YABBLE may subsequently delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 YABBLE Personnel. YABBLE will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with YABBLE’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.4 YABBLE Platform services. YABBLE will be responsible for the following Platform services:
- granting facilitation of access;
- hosting and providing access to the Platform’s software and technology;
- management, governance and communication with YABBLERS;
- data security and licences required to host and maintain YABBLE.
2.5 Beta Services. From time to time, YABBLE may make Beta Services available to Customer. Customer may choose to try such Beta Services or not in its sole discretion.
3. USE OF SERVICES AND CONTENT
3.1 Customer Responsibilities. Customer will (a) be responsible for compliance with this Agreement, Documentation and Order Forms, (b) obtain all necessary consents required by law for the collection, use, disclosure (including disclosure to persons located overseas) and storage of Customer Data in the manner contemplated by this Agreement (c) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services or Content, (d) maintain safeguards to prevent unauthorized access to or use of Customer Data, Services or Content, and notify YABBLE promptly of any unauthorized access, use or the occurrence of a Privacy Breach, (e) use Customer Data, Services and Content only in accordance with this Agreement and associated Documentation, and (f) comply with terms of service of which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer in YABBLE’s judgment threatens the security, integrity or availability of YABBLE’s services, may result in the immediate suspension of the Services, however YABBLE will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.2 In the event of a Privacy Breach, Customer must notify YABBLE no later than 24 hours after the occurrence or Customer becoming aware of the Privacy Breach. Customer will:
- promptly provide YABBLE with any information requested by YABBLE in relation to the Privacy Breach; and
- take such steps and provide such assistance as requested by YABBLE in relation to the Privacy Breach and any subsequent investigation or enquiry into the Privacy Breach, whether conducted by YABBLE, the Office of the Privacy Commissioner or a government agency.
3.3 Processing of Personal Data. Yabble does not need, utilize, require or suggest uploading Personally Identifiable Information for the purpose of generating analysis in the YABBLE Platform. The Customer acknowledges that this it is highly discouraged from uploading Personally Identifiable Information into the YABBLE platform. Customer will take all commercially reasonable efforts to limit the Personally Identifiable Information is uploads or otherwise makes available for YABBLE to process on its behalf. Notwithstanding the foregoing or anything to the contrary in this agreement, Customer shall in no event upload into the Application or otherwise make available to YABBLE for processing on it's behalf any sensitive personal data, not limited to but including health-related information, genetic data, biometric information, financial account information and information from government-issued documents. Customer shall indemnify, defend and hold Yabble harmless from and against any damages, liabilities, losses, costs and expenses incurred by YABBLE in connection with any claims, suits or actions bought against YABBLE, arising from Customer's breach of the foregoing.
3.4 Usage Data. YABBLE may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Application and related systems and technologies (including information provided by third-party analytical tools). YABBLE may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (a) complying with a regulatory inquiry or judicial action of a governmental body; and (b) actively or passively, improving the Application, and developing new products, services, features, and functionality. YABBLE shall own all right, title and interest in Usage Data. For the avoidance of doubt, Usage Data shall not be considered Confidential Information.
3.5 Third Party APIs and Services. The Application may enable users to query, call and pull data from third party application programming interfaces (“Third Party APIs”) and related services (collectively with Third Party APIs, “Third Party Services”). Customer acknowledges and agrees that Yabble does not control or review any data made available from any Third Party API (“Third Party Data”), and that Yabble is not responsible for, and does not assume any responsibility for, the accuracy, completeness, timeliness or truthfulness of any Third Party Data. All use of Third Party APIs, Third Party Services and Third Party Data is solely at Customer’s sole risk. In addition, Customer acknowledges that the use of Third Party APIs and Third Party Services may be subject to additional terms, conditions and limitations, such as the availability and uptimes of APIs, API call limits and limitations related to the processing of certain types of data, and that Customer will be responsible for complying with any such terms, conditions and/or limitations made available to Customer with respect thereto.
3.4 Access to YABBLE Platform and MyPanel and Products and the Services is exclusive to the Customer only. The Customer must not, under any circumstances, directly or indirectly, allow any other party that is not the Customer or an adviser to the Customer with appropriate confidentiality obligations, to access YABBLE Platform, MyPanel, Products or the Services. The Customer must not allow a third party to access YABBLE, MyPanel, Product or the Services, unless the Customer has obtained the prior written consent of the Company.
3.5 MyPanel is available for one brand within the Customers portfolio. All users recruited into a MyPanel community remain the property of the Customer.
3.6 Where the Customer selects “Approve and Order”, "Approve" or "Purchase" within the YABBLE Platform, the project is a Commissioned Project for the purposes of this Agreement, and the Customer is then liable for the costs associated with this project as indicated on the Customers Order Form.
3.7 For each Commissioned Project the Customer will be charged for the Products and Purchased Services detailed in the Order Form or online ordering portal and such other additional fees as agreed with the Company. The Company reserves the right to review the cost of any Commissioned Project should there be any requested variations to the scope of the Commissioned Project.
3.8 Once the Customer has requested a Commissioned Project or a variation to a Commissioned Project through the YABBLE Platform, the Company will either approve or reject the Commissioned Project or the variation to the Commissioned Project within 48 hours of the request.
3.9 A Project will be rejected when:
- unless otherwise agreed, there is insufficient Available Sample to complete the order; or
- the Company reasonably believe that the Project is not suitable for YABBLERS or the Project is in direct competitive conflict with the Company or other Customers; or
- the Company reasonably believes that the Customer Data is not appropriate or cannot be reasonably collected or analyzed to a high standard
3.10 Removal of Content. If Customer receives notice of a court order, interlocutory injunction, relief or any other order by a competent authority that Content must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in YABBLE’s judgment continued violation is likely to reoccur, YABBLE may disable the applicable Content, and/or Service. If requested by YABBLE, Customer shall confirm such deletion and discontinuance of use in writing and YABBLE shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if YABBLE is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or third-party rights, YABBLE may discontinue Customer’s access to Content through the Services.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified in this Agreement or in an Order Form:
- fees are based on Services ordered;
- payment obligations are non-cancellable, and fees paid are non-refundable, and
- Payment for the YABBLE Platform cannot be decreased during the relevant subscription term but can be changed or cancelled in accordance with Clause 10.2
4.2 Invoicing and Payment. Unless otherwise stated in the Order Form or YABBLE Platform, the Pricing Model will be payable by credit card immediately upon purchase unless otherwise agreed in writing. Customer is responsible for providing complete and accurate billing and contact information to YABBLE and notifying YABBLE of any changes to such information. YABBLE may at its discretion enable payment via invoicing. If payment by invoicing is approved, the Pricing Model will be invoiced monthly in advance and payable on the 20th of the month following unless otherwise agreed in writing. A credit card processing fee of up to 2.5% of the total value may be added to all credit card transactions.
4.3 Overdue Charges. If any invoiced amount is not received by YABBLE by the due date, then without limiting YABBLE’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or (b) the maximum rate permitted by law, whichever is lower.
4.4 Taxes. YABBLE's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, GST, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If YABBLE has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, YABBLE will invoice Customer and Customer will pay that amount unless Customer provides YABBLE with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights. Subject to the limited rights expressly granted under this Agreement, YABBLE, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer other than as expressly set out under this Agreement.
5.2 Access to and Use of Content. Customer has the right to access and use applicable Content and Purchased Services subject to the terms of applicable Order Forms, this Agreement and the Documentation.
5.3 License by Customer to YABBLE. Customer grants YABBLE, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Services created by or for Customer for use by Customer with the Services, and Customer Data, each as appropriate for YABBLE to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted under this Agreement, YABBLE acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
5.4 License by Customer to Use Feedback. Customer grants to YABBLE and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or YABBLERS relating to the operation of YABBLE’s or its Affiliates’ services.
5.5 License by Customer to Use Data. YABBLE shall have the right to derive, collect and analyze data and other information relating to the use and performance of various aspects of the Products and Services, and YABBLE may use such information and data (during and after the term hereof) to provide and improve the Products and Services and other YABBLE offerings for its customers.
6.1 Unless otherwise expressed in this Agreement, the receiving party of any Confidential Information agrees that it shall:
i. use the Confidential Information only to fulfil its obligations pursuant to this Agreement;
- treat all Confidential Information of the disclosing party as secret and confidential and shall not copy or disclose any such Confidential Information to any third party;
iii. not, without the express written consent of the disclosing party, disclose the Confidential Information or any part of it to any person except to the receiving party’s directors, employees, parent company, subsidiaries or agreed subcontractors, who need access to such Confidential Information for use in connection with the Products and Services and who are bound by appropriate confidentiality and non-use obligations; and
iv. comply promptly with any written request from the disclosing party to destroy or return any of the disclosing party’s Confidential Information (and all copies, summaries and extracts of such Confidential Information) then in the receiving party’s power or possession.
6.3 Each party acknowledges that damages may not be a sufficient remedy for breach of this clause 6 and that the other party may seek injunctive relief to restrain a breach or an anticipated breach by the other.
6.4 Each party will indemnify the other party and keep the indemnified party indemnified from and against any loss, cost or damage of any nature that the indemnified party may suffer as a consequence of the indemnifying party’s breach of this clause 6.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 YABBLE Warranties. YABBLE warrants that during an applicable subscription term, (a) YABBLE will not materially decrease the overall security of the Services, and (b) YABBLE will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.4 Disclaimers. The Consumer Guarantees Act 1993, the Fair-Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Company which can by law (or which can to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Company’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
8. MUTUAL INDEMNIFICATION
8.1 Mutual Indemnification. Each party will indemnify the other party and keep the indemnified party indemnified from and against any loss, cost or damage of any nature that the indemnified party may suffer as a consequence of the indemnifying party’s breach of its obligations under this Agreement including relating to but not limited to the use of Confidential Information, Intellectual Property Rights and Customer Data in an unlawful manner or in violation of this Agreement.
8.2 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all Order Forms have expired or have been cancelled or terminated.
10.2 Cancellation. A Customer may cancel a Subscription at any time, the cancellation will take effect at the end of the current subscription period.
10.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, YABBLE will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by YABBLE in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to YABBLE for the period prior to the effective date of termination. If a Subscription is cancelled by the Customer in accordance with the "Cancellation" section above, the Customer will pay any unpaid fees due covering the remainder of the term.
10.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as YABBLE retains possession of Customer Data.
11. DISPUTE RESOLUTION
11.1 If a dispute arises between the parties:
- either party must notify the other in writing of the dispute. The parties will endeavor to resolve the dispute by negotiation within 20 days of receiving notice; however
- if the parties cannot resolve the dispute, then each party will have the right to refer the dispute for mediation by a single mediator nominated by the President for the time being of the New Zealand Law Society. In the event of submission to mediation:
a) the mediator will be deemed to be determined to be not acting as an expert or an arbitrator;
b) the mediator will determine the procedure and timetable for mediation; and
c) the cost of the mediation will be shared equally between the parties involved in the dispute.
11.2 No party may issue any legal proceedings (other than for urgent interlocutory relief) in respect of any dispute, unless either:
- that party has first taken all reasonable steps to comply with the above clause; or
- the dispute has not been resolved to the satisfaction of the party within 20 days following the commencement of a mediation under the above clause.
12. GENERAL PROVISIONS
12.1 Variations. YABBLE will notify the Customer of any amendments or variations to the terms of this Agreement and publish the same on the YABBLE website. Continued use of the Services by the Customer will be deemed acceptance of the revised Agreement. Any amendment or variation to the Order Form or other variations must be mutually agreed in writing.
12.2 Force Majeure/Unforeseen Circumstances: No party will be liable for any act, omission or failure by it under this Agreement if such results directly from an event or circumstances beyond the reasonable control of that party, provided that:
- whenever that party becomes aware that such a result has occurred or is likely to occur, that party will notifies the other party by written notice accordingly;
- the parties will continue to use their best endeavours to perform their obligations as required under this agreement; and
- no party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure.
12.3 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.4 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between YABBLE and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.5 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.6 Publicity. YABBLE may use Customer's trademark, trade name and logo to publicly identify Customer as a customer of YABBLE. YABBLE will comply with any brand guidelines or standards that the Customer provides from time to time. If Customer does not want to allow YABBLE the right to use Customer's Marks or identity, Customer may opt out of this Section 12.6 at any time by emailing YABBLE at email@example.com.
12.7 Waiver. Failure by a party to enforce any of the terms and conditions contained in this Agreement shall not be deemed to be a waiver of any of the rights or obligations that party has under this contract.
12.8 Severability. If any provision or part of a provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement and any remainder of the provisions shall remain otherwise in full force apart from that part of the provisions which shall be deemed deleted.
12.9 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
12.10 YABBLE Contracting Entity, Notices, Governing Law, and Venue. The YABBLE entity entering into this Agreement and, the address to which Customer should direct notices under this Agreement are detailed in the below table.
The YABBLE entity entering into this Agreement is: The Thinking Studio Limited (trading as Yabble)
Notices should be addressed to:
The Thinking Studio Ltd (trading as Yabble)
c/o Tompkins Wake
430 Victoria Street
12.11 Manner of Giving Notice. Each notice, agreement and other communication (each a communication) to be given, delivered or made under this Agreement is to be in writing but may be sent by personal delivery, post or email to the last known address. A communication under this Agreement will only be effective:
- in the case of personal delivery, when delivered; and
- if posted or delivered to a document exchange, 5 Working Days in the place of receipt, after posting or delivery;
- if made by email, when received as set out in the Electronic Transactions Act 2002 (NZ),
- provided that any communication received or deemed received after 5 pm or on a day which is not a Working Day will be
deemed not to have been received until the next Working Day.
12.12 Agreement to Governing Law and Jurisdiction. This Agreement and the license granted under it, shall be governed and construed in accordance with the laws of New Zealand, regardless of the principles of conflict of laws, and the parties submit to the exclusive jurisdiction of the courts of New Zealand over all disputes arising in connection with this Agreement.