1. Definitions, License Grant
"Client” means the entity, specified on the relevant Order Form, which is granted access to the Sticky Platform hereunder;
"Client Data" means any images, data, information or material that Client submits to Sticky for processing;
"Content" means documents, files and other output reports generated and provided to Client by the Sticky Platform in accordance with its functioning;
“Crowd” means a group of individuals with whom Sticky has a relationship and that has agreed to participate in studies, experiments or other activities;
”Additional Service Purchase” means any service or product offered in the Sticky Platform which is additional to, and separate from, a Plan;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Order Form" means an order, placed via the Sticky Platform order page, that specifies the terms, pricing, and other terms related to a Plan or an Additional Service Purchase, as confirmed by Client in accordance with the website instructions (such as clicking “I agree”, “Yes, please bill my card” or similar) and which has been confirmed by Sticky. If Client’s order has been placed by way of signing a physical document provided by Sticky, then that document shall constitute an Order Form;
“Personal Data” means any information that can be used to identify an individual as that term is defined under Regulation (EU) 2016/679 (commonly referred to as the General Data Protection Regulation, or GDPR);
"Sticky Platform" means the “Sticky” visual engagement and data analytics platform provided to Client hereunder via the designated web interface;
“Sticky” means the legal entity which is contracting, providing and billing services hereunder specified as:
for Clients located in Canada or the USA: Tobii Technology Inc, a US corporation with offices at 12007 Sunrise Valley Drive, Suite 400 Reston, VA;
Notices: Tobii Technology Inc, 12007 Sunrise Valley Drive, Suite 400, Reston, VA 20191, USA (att: Legal Dept.)
for Clients located in the United Kingdom: Tobii Pro UK Holdings Ltd., a UK limited liability company with offices at 1 Chapel Street, Warwick, England, CV34 4HL;
Notices: Tobii Pro UK Holdings AB, 1 Chapel Street, Warwick, England, CV34 4HL (att: Legal Dept.)
for Clients located in Japan: Tobii Technology K.K, a Japanese limited liability company with offices at 7-7-7 Nishigotanda, SG Square 3F, Shinagawa-ku, Tokyo 141-0031, Japan;
Notices: 7-7-7 Nishigotanda, SG Square 3F, Shinagawa-ku, Tokyo 141-0031 JAPAN (att: Legal Dept.)
for Clients located in the EU/Rest-of-world: Tobii AB, a Swedish corporation with offices at Karlsrovägen 2D, S-182 53 Danderyd, Sweden;
Notices: Tobii AB, Box 743 182 17 Danderyd, SWEDEN (att: Legal Dept.)
"Sticky Technology" means any and all of Sticky's proprietary technology used by Sticky to provide the Sticky Platform;
"User(s)" means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Sticky Platform and have been supplied user identifications and passwords by Client (or by Sticky at Client’s request).
2.1 Except as otherwise expressly permitted hereunder, Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Sticky Platform in any way; (ii) modify or make derivative works based upon the Sticky Platform or the Sticky Technology; (iii) create internet "links" to the Sticky Platform or "frame" or "mirror" it; or (iv) reverse engineer or access the Sticky Platform in order to (a) monitor the availability, performance, or functionality of the Sticky Platform, or for any benchmarking purpose, (b) build a competing product or solution or develop any product or solution based on similar ideas, features, functions or graphics as for the Sticky Platform, or (c) copy any ideas, features, functions or graphics from the Sticky Platform. Additionally, Client shall not use the Sticky Platform to: (i) upload or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or Intellectual Property Rights; (ii) upload or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Sticky Platform or the data contained therein; or (iv) attempt to gain unauthorized access to the Sticky Platform or its related systems or networks or to any material or information belonging to another customer, or generally to any information or function that is not intended for Client. Furthermore, Client shall only use the Sticky Platform in accordance with instructions or restrictions provided therein, or as otherwise communicated by Sticky.
2.2 Geographical restrictions may apply. In particular, without limitation, Client may not use the Sticky Platform for studies in Russia or China. The Sticky Platform is designed for only generating Content which does not include any Personal Data, for example relating to Crowd participants. In the event that Client should receive or be able to access any Personal Data, it should delete any copies of it and notify Sticky immediately. Client may not use the Sticky Platform to request Personal Data from a Crowd, or process any information (whether identifiable or not) regarding racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning sexual life or sexual orientation.
2.3 Client is responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Sticky Platform and the Client Data, including those related to data privacy, international communications and the transmission of technical or Personal Data.
3. Client Data, Client’s License to Content
3.2 Sticky hereby grants, conditional on Client’s adherence to the terms herein, a perpetual, world-wide license to any Content which has been generated for Client by the Sticky Platform. Such right shall include Client’s right to make copies of the Content, make modifications to it, sub-license it to third parties, and to otherwise commercially exploit it. However, Client may not remove or alter any Sticky name, logotype or similar mark, or any legal or copyright notice, which may be included in Content.
4. Intellectual Property Ownership
Sticky alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Sticky Technology, the Content and the Sticky Platform and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Sticky Platform. Unless explicitly stated, no provision herein shall be construed as conferring to Client any title of ownership or rights in or related to the Sticky Platform, Content, the Sticky Technology or any Intellectual Property Rights owned by Sticky. The Sticky name, the Sticky logo, and the product names associated with the Sticky Platform are trademarks of Sticky or third parties, and no right or license is granted to use them.
5. Plans, Additional Service Purchases, Fees
5.1 From time to time, Sticky may offer access to the Sticky Platform at no cost. Such Plans will be marked as “Free” or similar, and, for the avoidance of doubt, Client will not be charged any fees for signing up to such a Plan. Unless stated otherwise in the relevant Order Form, a free Plan will continue until terminated by Client or by Sticky in accordance with the terms herein.
5.2 Plans may include a free trial period. Unless the relevant Order Form states otherwise, at the end of the trial period, such Plan will automatically become a paid Plan with a twelve (12) month initial subscription period, at Sticky’s then-standard rates and terms. However, if Client gives notice to terminate the Plan at any time during the trial period, then it shall terminate without any charge to Client.
5.3 A Plan may be subject to a binding initial subscription period, as stated on the relevant Order Form. Unless stated otherwise on the relevant Order Form, such Plan will renew automatically, by a period of time equal to the length of the initial subscription period, unless terminated by Client no later than thirty (30) days before the end of the then-current subscription period. Such termination shall be effective at the end of any remaining subscription period, and Client will be charged fees accordingly, regardless of Client’s use, or cease thereof, of the Sticky Platform.
5.4 Plans that are not subject to an initial, minimum or set subscription period shall continue until terminated in accordance with the terms herein.
5.5 Client may give notice to terminate a Plan at any time, either via the Sticky Platform (provided that such functionality is available to Client) or as advised by Sticky. On termination, a paid Plan may be downgraded to a “Free” Plan to allow Client’s continued access to the Sticky Platform.
5.6 Any fees applicable to a Plan shall be due and billable as stated on the relevant Order Form. If the relevant Order Form does not include such specification, then Sticky’s then-standard rates at the time shall apply and shall be due monthly in advance.
5.7 From time to time, Sticky may offer Client Additional Service Purchases, such as access to “crowds”, “sessions” or other services or functionalities of, or related to, the Sticky Platform. The fees and terms applicable to an Additional Service Purchase will be recorded in an Order Form. If an Additional Service Purchase includes tokens, credits or other forms of Client’s pre-paid access to a service or function, then Client must redeem or claim such tokens within one (1) year from purchase, unless stated otherwise in the relevant Order Form. Failure to do so may result in the cancellation of the token or credit without refund.
5.8 Sticky may, at its sole and absolute discretion and without prior notice, terminate, fully or in part, a Plan or an Additional Service Purchase without regard to any remaining subscription periods, or may elect to not re-new a Plan for additional subscription periods. If Sticky terminates a Plan or an Additional Service Purchase, for which Client has paid in advance, then Sticky may re-imburse Client for unused fees, or subtract a corresponding amount from any coming Client charge.
6. Charges, Payment of Fees, Invoicing
6.1 An Order Form which has been confirmed by Sticky will be considered final. Any payment by Client related to the Sticky Platform will be final and non-refundable. Sticky does not provide refunds or credits for any partial subscription periods, except as may be expressly stated on the relevant Order Form or herein.
6.3 Client acknowledges that Sticky will provide Client’s credit card information to its third-party payment processor and that such processor will store, use and process the credit card information as necessary to process payments. Client is responsible for providing complete and accurate billing, credit card and contact information to Sticky, including Client’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and any other information requested by Sticky and notifying Sticky of any changes to such information. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Sticky reserves the right to terminate Client’s access to the Sticky Platform in addition to any other legal remedies. Client consents to receiving electronic communications from Sticky. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Sticky Platform.
6.4 Sticky reserves the right to modify its fees and charges and to introduce new charges at any time, by updating the pricing on the Sticky Platform website. Unless stated otherwise on the relevant Order Form, a Plan shall always re-new at the fees and charges that are current at the time of renewal. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes associated with its purchases hereunder. If Sticky is required to collect any Taxes from Client, such Taxes will be added to the charges on Client’s credit card or added to Client’s invoice, as applicable.
7. Responsibilities and Indemnity Obligations
8.1 “Confidential Information” means any non-public information that relates to the actual or anticipated business, research, or development of Client or Sticky and any proprietary information, trade secrets, and know-how of either party that is disclosed to either party or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Furthermore, Confidential Information includes Client Data and information that is defined as “Confidential Information”. Each party’s Confidential Information is the sole property of that party.
8.2 Confidential Information does not include any information that either party can demonstrate: (a) was publicly known and made generally available in the public domain before the other party disclosed the information, (b) became publicly known and made generally available, after disclosure by either party, through no wrongful action or inaction of either party or others who were under confidentiality obligations, (c) was in either party’s possession, without confidentiality restrictions, at the time of disclosure by either party, as shown by that party’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.
9. Representations & Warranties
10. Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 9, STICKY AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE STICKY PLATFORM OR ANY CONTENT. STICKY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE STICKY PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE STICKY PLATFORM WILL MEET REQUIREMENTS OR EXPECTATIONS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.CLIENT IS RESPONSIBLE FOR BACKING UP ITS OWN CLIENT DATA. THE STICKY PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STICKY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. Limitation of Liability
12. Term and Termination
12.4 Unless explicitly stated otherwise on an Order Form, Client hereby grants to Sticky the right to use Client’s name, mark and logo on the Sticky website, in Sticky marketing materials, and to identify Client as a Sticky customer.
13. Applicable law, Dispute resolution, Miscellaneous
13.1 Notices hereunder to Sticky shall be sent to the addresses stated in Section 1.1 (“Definitions”) above. Notices to Client shall be sent to the address stated in the relevant Order Form, or via the Sticky Platform. All notices shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon express written acknowledgment of receipt of electronic transmission. Notices sent to Client via the Sticky Platform shall be deemed given five (5) days after they have been sent.
Effective: June 21, 2022