Back To Top

Service Agreement — Creative Testing Platform 

 

BACKGROUND

·        Validators B.V., with the address Johan van Hasseltweg 39c, 1021KN Amsterdam, registered with the Chamber of Commerce under the following number: 60570369 (CTP) has developed a software platform called: Creative Testing Platform (CTP), with which you collect, process, analyse and report data (the Software).
·        CTP offers the Software by means of a Software-as-a-Service (SaaS). This means that CTP offers access to the Software via the Internet.
·        Clients (the Client) that wish to grant certain users access to the Software agree to the conditions, specified in this framework agreement (the Agreement), under which CTP offers the access to the Software.
·        This Agreement will be supplemented by a separate confirmation (the Order Confirmation), specifying detailed conditions agreed upon with the Client.
·        Throughout the Agreement, CTP and the Client are referred to as the Parties (and each a Party).

 

AGREEMENT

1.      Use of the Software
1.1.     The Software offers its users the possibility to test creative outings (each test referred to as a Tested Creative).
1.2.     The Client may grant an agreed upon number of users access to the Software (the Users). The number of Users is agreed upon in the Order Confirmation.
1.3.     The Order Confirmation shall specify the number of Tested Creatives the Client shall be entitled to.
1.4.     The Users have access to the Software for the duration of:
a)     One year after the date of the Order Agreement; and
b)    As long as the Client has not surpassed the agreed upon number of Tested Creatives.
1.5.     The Order Confirmation shall specify which part of the Software and which services shall be made available to the Users.
1.6.     The Client shall remain responsible for the use of the Software by the Users.

 

2.      Access to the Software
2.1.     The purpose of the Software is to perform online research by recording clicks, mouse movements, videos, audio files and typed answers. Users are only allowed to use the Software in accordance with its designated purpose. If Client (or a User) wants to use the Software for purposes not specified in this Agreement, the prior consent of CTP is always required.
2.2.     The Client agrees to adhere to the acceptable use policy located at https://creativetestingplatform.com/acceptable-use-policy/ (the Acceptable Use Policy) and shall ensure that Users accept and adhere to the Acceptable Use Policy as well.
2.3.     Each User must register themselves with CTP. After CTP has approved the registration, the User will receive a user account with a password.
2.4.     User accounts are personal and may not be used by more than one person. Users may not give third parties access to (a backup copy of) the Software. Users must keep their personal accounts and their passwords confidential.
2.5.     To transfer accounts to another user or to add new Users, the client shall send an email to support@creativetestingplatform.com.
2.6.     Client is liable for all acts committed through a User’s personal account. If a third party has access to the personal account of a User, Client shall notify CTP immediately. CTP reserves the right to block the affected account. Client is no longer liable for the abovementioned acts after having notified CTP that a third party has access to the account.
2.7.     After the duration of the Agreement, Client no longer has access to the data on the server of CTP or any third party employed by CTP.

 

3.      Prices and payment
3.1.     The prices on CTP’s website are non-binding offers. Prices shown at the website may be amended by CTP at any time. The final price for the use of (parts of) the Software is specified in the Order Confirmation.
3.2.     Unless otherwise specified, communicated prices do not include applicable Dutch VAT or levies by the authorities.
3.3.     The first payment term and method made by the Client shall be specified on the Order Confirmation. The duration of a payment term is equal to the duration of the access to the Software as specified in 1.4, the first occurrence of:
a)     One year after the Order Confirmation date; or
b)    Reaching the number of agreed upon Tested Creatives.
3.4.     If the payment term ends, the Order Confirmation shall be automatically renewed, unless the Client terminates the Agreement before the end of the payment term.
3.5.     CTP is allowed to adjust the prices mentioned in 3.1 on a yearly basis, in accordance with the inflation levels.
3.6.     CTP is allowed to change the prices mentioned in 3.1 in case of a material change of this Agreement or an extension of this Agreement.

 

4.      Data Download
4.1.     Users have the possibility to download and personally store all data that has been collected, processed and saved by means of the use of the Software by that User [AL1] . After termination of this agreement, User no longer has access to the data on the server of CTP or any third party employed by CTP.

 

5.      Obligations resting on CTP
5.1.     CTP will, for the duration of this Agreement, ensure that Users are able to use the Software in accordance with the conditions specified therein.
5.2.     CTP is responsible for the technical functioning and maintenance of the Software.
5.3.     For the duration of this Agreement CTP will put in all reasonable efforts to make the Software available to Users 24 hours a day, 7 days a week.
5.4.     Due to maintenance responsibilities, CTP can choose to temporarily restrict all access to the Software. Maintenance will, as a matter of principle, never take place during office hours (Monday to Friday from 09:00 to 17:00 CEST). CTP will notify Client of such a maintenance at least 3 days in advance. Only in case of emergencies CTP will not notify Client.
5.5.     CTP can update the Software for maintenance purposes or in order to improve the Software. An update means: restoring known errors and implementing small improvements in the software’s functionality. CTP notifies the Client two days in advance regarding the specifics of the update and the newly added or modified parts of the Software.
5.6.     CTP offers a helpdesk. Users can contact the helpdesk for technical support and in order to report an Incident. The helpdesk can be reached from Monday to Friday from 09:00 to 17:00 CEST by support@creativetestingplatform.com. CTP will respond as soon as possible, and in any case within 24 hours.
5.7.     If an incident has been caused by a Software malfunction, CTP will restore this free of any charge. An Incident means: a mistake in the Software which causes the Software in its entirety not to function in accordance with what is agreed upon in this Agreement.
5.8.     CTP can, against an additional charge, of which the height will still have to be agreed on by the Parties, offer additional services.
5.9.     CTP can employ third parties to offer (part of) the services.

 

6.      Obligations of the Client
6.1.     Client will, in due time, provide CTP with all information necessary for the execution of this Agreement. CTP is not liable in case the obligations specified in this Agreement or the Order Confirmation are not honoured or not honoured within time, as a consequence of Client’s failure to timely provide CTP with the relevant materials or information.
6.2.     It is Client’s responsibility to ensure the functioning and maintenance of the internet connection, internal networks and other IT-systems, that form the necessary requirements for operating the Software. CTP is not liable for any Incident relating to one of the aforementioned matters. If a User uses the Software in an inadequate manner, thereby causing an Incident, CTP shall not be held liable. Client bears the costs of resolving the Incident, for which the Client or a User is responsible. The costs of this amount to EUR 1.000,00 per week to be paid once.
6.3.     Users will use the Software in accordance with the applicable legal norms (including but not limited to the General Data Protection Regulation).
6.4.     Users may not use the Software in any manner that would go against the main purpose of the Software as specified in this Agreement (which can be found in article 2 “Access to the Software”). CTP cannot be held liable for any damage which is the result of any form of such an incorrect use of the Software.
6.5.     Client ensures that Users will not act in breach with the Acceptable Use Policy. CTP may block the User’s access to the Software if the User acts in breach of the Acceptable Use Policy.
6.6.     Users can alter the appearance of the Software to match his own style preferences. It is forbidden for Client to modify the Software in any way as to make it resemble a platform of another company or institution.
6.7.     Client and Users are not allowed to:
·        provide the Software or to make the Software available to third parties without the prior written consent of CTP;
·        create any new legal rights relating to the Software;
·        hand out licenses that give third parties a right to use the Software; or
·        create new Software derived from/based on the Software offered by CTP or (try to) create a competing version of the Software.
6.8.     CTP has the right to (temporarily) block personal accounts. CTP can only do this in case there is reasonable suspicion that one or more accounts are used in a matter that infringes on the obligations set out in this Agreement, including but not limited to the breach of the Acceptable Use Policy, or on any other applicable law. Furthermore, CTP has the right to take other measures deemed adequate, taking into account the circumstances at hand.
6.9.     Client consents to CTP’s use of Client’s name and logo on CTP’s website and in its marketing materials, for the sole purpose of identifying Client as a user of the Software, unless Client explicitly denies CTP’s use of Client’s name and logo in writing.
6.10.  Use of Proprietary Marks.  Proprietary Marks means the trademarks, trade names, logos, designs, symbols, emblems, insignia, fascia, slogans and other identifying marks relating to CTP. In case the Client or a User wants to use CTP’s Proprietary Marks they must obtain written consent from CTP. Written consent may be obtained through formal agreements, licenses, or written permissions (also via email) explicitly granting the right to use the Proprietary Marks in specific contexts or under specific conditions. The Client is not allowed to engage in the following activities without written consent: (a) use Proprietary Marks in a manner that could create confusion or mislead about the ownership or affiliation with CTP’s provider, (b) alter, modify, or distort the appearance of Proprietary Marks including but not limited to color, shape, design, or text, (c) registering, acquiring domain names, social media handles, or usernames that incorporate CTP’s Proprietary Marks, (d) use Proprietary Marks to endorse, promote, or advertise third-party products, services, or content.

 

7.      Exclusion
7.1.     CTP may terminate this Agreement with the Client and exclude the Client (or specific User’s personal accounts) from any further use of the Software, by, inter alia, (temporarily) blocking or deleting the User account(s), without being obliged to (re)pay any amounts already collected or any compensation. CTP may do so in any case, but not exclusively, if:
·        The Client or User violates applicable laws and regulations, this Agreement or the Acceptable Use Policy;
·        The Client fails to meet payment obligations from this Agreement, the Order Confirmation or a separate agreement in regard to the use of the Software.

 

8.      Data
8.1.     Client is the exclusive owner of all data which is collected, processed or stored, by means of the Software (the Response Data). CTP needs prior consent from Client in order to access the Response Data. Client is responsible for the collection of Response Data and ensures that this is in accordance with the applicable legal regime (including but not limited to the General Data Protection Regulation).
8.2.     CTP may store Response Data on third-party Servers. CTP ensures that the third parties cannot grant themselves access to the Response Data. The Client shall enter into a data processing agreement with the third party or parties that provide Servers to CTP. The data processing agreement is located at https://creativetestingplatform.com/data-processing-agreement-creative-testing-platform/ and will form an integral part of it. In this data processing agreement, parties will agree to, among other things, security measures, non-disclosure, the loss of data and the location on which the data will be stored.
8.3.     CTP ensures that the third parties will make a back-up of all the data that has been processed by using the Software, on a daily basis.

 

9.      Intellectual Property
9.1.     CTP (or its licensor or supplier) are the exclusive owner of all existing and future intellectual property rights, such as copyrights, trademarks, design rights, patents, source codes and know-how, which rest on the Software or are the fruits of the use of the Software.
9.2.     Client or its Users are not an owner of any intellectual property rights for ideas or suggestions provided to CTP in relation to the Software. Client or a User is not entitled to any compensation if CTP decides to implement the ideas or suggestions to the Software.
9.3.     Client only obtains the right to use the Software. Client cannot invoke any of the intellectual property rights as specified in subsection 7.1. The right to use the Software is not exclusive and it is expressly forbidden from transferring or licensing the right of use to a third party.
9.4.     Response Data is data obtained from persons responding to and/or having received surveys from Client. Content means any content or data (including pictures, logos, survey questions, survey information, survey content, and all other content not listed here) that Client or other users submit to CTP. Client retains and owns all rights, title and interest and intellectual property rights in relation to the Response Data and Content.

 

10.   Non-disclosure
10.1.  CTP shall not disclose any confidential information of the Users (the Confidential Information), means all information which has been designated as confidential by the Client or which by its nature ought to be considered confidential. The following is in any case confidential:
·        all information related to research, development, trade secrets or information related to company matters; and
·        personal data as meant in the General Data Protection Regulation (GDPR).
10.2.  The non-disclosure rules mentioned in 10.1 do not apply to situations when CTP is required to disclose certain information by law.
10.3.  The non-disclosure rules mentioned in 10.1 do not prohibit CTP to share aggregated information which shall not trace back to certain Client or User specific information.

 

11.   Transferability
Client is not allowed to transfer any legal rights or obligations arising from this Agreement to third parties without the explicit prior consent of CTP.

 

12.   Liability
12.1.  Client indemnifies CTP for all claims by third parties relating to the data that Client or User has collected, saved or, processed by means of the Software.
12.2.  CTP does not guarantee that the Software is completely free of errors. CTP is not liable in the case of damages due to a bug or an error in the Software.
12.3.  CTP is not liable for the content of the data that Client or Users have collected, saved or processed within the Software.
12.4.  CTP is not liable for all damage that arises as a consequence of the improper use of the Software.
12.5.  CTP is only liable for direct damages, affecting the Client, that are fully caused by a shortcoming from its side.
12.6.  The liability of CTP is in any case limited to a maximum of the last yearly fee paid by the Client or the maximum amount paid out by its insurer in the case at hand.
12.7.  CTP undertakes to store Client and User data safely, however, CTP cannot be held liable for any damages as a result of loss or damage of any data.
12.8.  The limitations set out in this article do not apply if the damages are the result of a deliberate act or gross negligence from the side of CTP.

 

13.   Force Majeure
No liability occurs in case of force majeure. If the force majeure takes place for a period that exceeds 2 months, this Agreement can be terminated in writing by either Party. In such case, neither Party has the right to recover damages from the other Party. In case of termination by the Client based on this article, CTP shall send Client an invoice regarding the period in which the Software has been used (this includes months for which no payment has yet been received).

 

14.   Costs, default
14.1.  Client shall indemnify CTP for all costs it has made in order to enforce the obligations resting on Client, arising from this Agreement.
14.2.  If the payment by Client is due, he will automatically be in default, a notice of default is not required.

 

15.   Penalty clause
In case of a violation of this Agreement by Client, he will owe CTP a fine of EUR 25.000,00 lump sum and EUR 250 per day the Client fails to remedy the breach. The fine will be due after Client has been given a reasonable term of 14 days in order to remedy this breach. After expiration of this period for remedy, the fine will be claimable effective immediately. Furthermore, Client must indemnify CTP for all damages caused to him as a consequence of this breach by Client.

 

16.   Nullity
If any part of these conditions is void or voidable, this does not affect the validity of the remainder of these conditions. The invalid or unenforceable part shall be replaced by a provision that most closely follows the content of the invalid provision.

 

17.   Miscellaneous
17.1.  Changes to this Agreement are only valid if they are in writing.
17.2.  All annexes to this Agreement form an integral part of it.
17.3.  This Agreement replaces all previous agreements between the parties on the subject matter of this Agreement.

 

18.   Applicable law
Dutch law.

 

19.   Competent court
The court of Amsterdam.

 

Annexes
1.     Acceptable Use Policy
2.     Data Processing Agreement