Terms of Service
Because what's a few rules between friends?
These Terms of Service (Terms) are entered into between PredictHQ Limited (New Zealand company number 5049540, with its registered office at Level 2, 23 Customs Street East, New Zealand) (PredictHQ) and the customer party listed on the Order Form to which these Terms are attached (Customer), being a person or entity that has agreed to be bound by such Order Form and these Terms. These Terms apply to Customer’s access to and use of PredictHQ's event searching solution, PredictHQ Data and all related services, data, software and other tools (the PredictHQ Services), which PredictHQ has agreed to make available to the Customer, as specified (and subject to the terms and restrictions) in the Order Form.
1. About these Terms
- 1.1 The Glossary in section 11 of these Terms defines words and phrases used throughout.
2. Term and Termination
- 2.1 These Terms (and Customer’s Service Plan for the PredictHQ Services) commence upon the Effective Date of the first Order Form, and, unless earlier terminated in accordance with this section 2, will continue in full force and effect until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the Order Form Term shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on such Order Form (the Order Form Initial Term), and (ii) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, an Order Form Renewal Term) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable.
2.2 Either party may terminate these Terms immediately by written notice if the other party:
- a) commits a material or persistent breach of these Terms that is either not capable of remedy or has not been remedied within ten (10) Business Days of written notice requiring the defaulting party to do so; or
- b) becomes insolvent or bankrupt, fails to pay its debts as they fall due or becomes subject to any form of insolvency action or administration that is not dismissed within 120 days.
- 2.3 Without prejudice to PredictHQ’s rights under section 2.2, PredictHQ may immediately suspend Customer’s PredictHQ account and/or access to the PredictHQ Services if at any time PredictHQ reasonably believes that such suspension is reasonably necessary to protect the integrity, security or performance of the PredictHQ Services or PredictHQ’s systems, or PredictHQ’s Intellectual Property Rights, or those of PredictHQ’s licensors, customers or partners. PredictHQ will endeavour to notify Customer where PredictHQ takes any suspension action under this section 2.3. Pending the outcome of PredictHQ’s investigations, PredictHQ may either restore Customer’s access to the PredictHQ Services or terminate these Terms in accordance with section 2.2(a).
2.4 Upon termination or expiry of these Terms for any reason:
- a) the termination or expiry shall be without prejudice to either party's accrued rights and remedies;
- b) all licenses and other rights of use granted (including Customer’s right to continue using any aspect of the PredictHQ Services) under these Terms will immediately terminate;
- c) Customer must pay all Fees due within thirty (30) days of termination;
- d) if Customer requests within one (1) month of termination, PredictHQ will remove or delete all Customer Data from PredictHQ’s systems and certify in writing that PredictHQ has done so;
- e) at the request of a party, promptly return or destroy all that party’s Confidential Information in the holder’s possession or control, and certify in writing that it has done so; and
- f) sections 2, 4, 5, 7, 8, 10, and 11, together with any other provisions that are by their nature intended to survive, will remain in effect.
- 2.5 On termination or expiry of the Term, the Customer must permanently delete all PredictHQ Data in its possession or control and certify (on request) to PredictHQ that it has done so. Customer must also permanently delete any Derived Data or other derivative forms of work formed from the use of the PredictHQ Data.
3. PredictHQ Services
- 3.1 PredictHQ will provide the PredictHQ Services to Customer in accordance with these Terms and in a professional and workmanlike manner.
- 3.2 PredictHQ may make changes to the PredictHQ Services from time to time (including features, functionality, interfaces or the composition of PredictHQ Data), but such changes will not materially and adversely affect Customer’s use of the PredictHQ Services in the aggregate.
- 3.3 If PredictHQ does not charge any Fees to Customer for use of the PredictHQ Services, Customer acknowledges and agrees that PredictHQ may impose limits on certain features and services or restrict Customer’s access to parts or all of the PredictHQ Services and that PredictHQ’s support and indemnification obligations shall not apply
- 3.4 The PredictHQ Services rely on data, services and infrastructure supplied by third parties. While PredictHQ makes efforts to ensure that the PredictHQ Services are available without interruption, PredictHQ does not guarantee the uptime, availability or performance of the PredictHQ Services, or availability or provision of particular PredictHQ Data. From time to time, PredictHQ may also need to withdraw or limit access to the PredictHQ Services to allow for maintenance and development to take place. Where possible, PredictHQ will provide Customer with reasonable prior notice, and schedule such maintenance or development outside peak times.
- 3.5 Where Customer's Service Plan includes access to other services, those will be provided as agreed in separate Services Addenda from time to time.
3.6 Access to PredictHQ Services:
Access via Third Party Platforms:
a) Where (per the Order Form) Customer accesses PredictHQ Services via Snowflake or ADX (each a
Third Party Platform), it will be responsible for:
- ii) all storage and computation of PredictHQ Data and/or any Customer Data, once in the Customer's environment on the Third Party Platform.
API Use and Restrictions:
b) If Customer is authorized to use an API as part of Customer’s Premium Plan, then Customer is
- i) receive a subset of PredictHQ Data (applicable to the API to which Customer has subscribed) in response to API requests that Customer makes in accordance with these Terms; and
- ii) use, display, frame, transmit and make available that PredictHQ Data solely in respect of Customer’s own internal business use, products and services, strictly in accordance with any restrictions set out in these Terms.
- c) If Customer has subscribed to a Free, Developer, Trial Plan, or a complimentary or trial Lite or Premium Plan, then Customer’s right to use any PredictHQ Data is limited to internal use for the purposes of testing combinations of the PredictHQ Data with Customer’s own products and datasets, provided that Customer will not use any PredictHQ Data, or any data or information that results from such testing, for Commercial Use unless and until Customer has subscribed to a (paid) Premium Plan or a (paid) Lite Plan.
d) In addition to any conditions and restrictions set out elsewhere in these Terms, but subject to
any Permitted Use Extensions set out in the Order Form, Customer must not:
- i) cache, store, download, scrape, or retain a copy of or a method of accessing (other than via the API token that PredictHQ has issued to Customer) any PredictHQ Data in any form or format, unless otherwise agreed with us in writing;
- ii) use any API or any PredictHQ Data to create any derivative works except as expressly permitted by PredictHQ in writing;
- iii) use any API or any PredictHQ Data for any website, product, application or service that attempts to replace or replicate any functionality or user experience of PredictHQ's products or services, or those of PredictHQ’s data suppliers, without PredictHQ’s prior written consent;
- iv) use any API or any PredictHQ Data for any unlawful, infringing or offensive purpose, or for any application that constitutes or is used in connection with spyware, adware or other malicious programs or code;
- v) sell, rent, lease or sub-license access to any API or PredictHQ Data, without PredictHQ's prior written consent;
- vi) amend, distort or modify any API;
- vii) attempt to exceed or circumvent any limits to request rates or frequency that PredictHQ may set in PredictHQ’s sole discretion from time to time;
- viii) use any API in a manner that impacts the stability of PredictHQ’s platform, systems or services, or that of any other application(s) using the API; or
- ix) use or display (or authorise or facilitate any other person to use or display) any PredictHQ Data on any ticketing or ticketing reseller platform.
- e) Customer will be issued with an API token specific to Customer’s organization. Customer agrees that the API token is PredictHQ’s Confidential Information and Customer must not share or disclose Customer’s API token with anyone outside of Customer’s organization. PredictHQ reserves the right to revoke Customer’s API token if PredictHQ suspects any unauthorized use.
- f) PredictHQ may make changes to the API from time to time and without notification.
- a) Where (per the Order Form) Customer accesses PredictHQ Services via Snowflake or ADX (each a Third Party Platform), it will be responsible for:
- a) This section 3.7 applies to Customer's use of Beam (to the extent it forms part of Customer's Service Plan) and any reports, outputs, analysis, insights, data, content, algorithm or other deliverables generated and/or made available to Customer as part of Beam (Insights).
b) Beam is PredictHQ's Impact Prediction Engine and uses transactional data provided by Customer
(constituting Customer Data) to identify demand impact correlation with known events. Section 5.4 of the
General Terms applies to any Customer Data provided by Customer when using Beam, meaning that:
- i) Customer remains owner of all of the IP Rights to Customer Data; and
- ii) Customer grants to PredictHQ a worldwide, non-exclusive, irrevocable, royalty-free, transferable license to use, store, copy, modify, make available and communicate that Customer Data for the purposes of: undertaking analysis and time series modelling to identify and report on correlations between Customer Data and events; generation and publication of Insights (which includes: (A) graphs, reports and data provided to Customer; and (B) insights, trends, analysis, data, content and anecdotes drawn from correlations between Customer Data and events and other data which may then be used in PredictHQ algorithms and/or published (on an anonymised basis) in PredictHQ products, reports and other materials); and otherwise providing the Beam service and performing PredictHQ obligations under these Terms.
c) Customer will ensure that Customer Data provided for use in Beam is limited to its business’
transactional data only and must not include any personal data or personally identifiable information
(as defined in any applicable privacy law(s)) (Personal Information). PredictHQ does not need to
receive or use, and does not request, any Personal Information in relation to Beam (other than contact
details of individuals at Customer's organisation who are authorised to use, or with whom PredictHQ
corresponds in relation to, Beam or other PredictHQ Services). Customer warrants and represents that:
- it is authorised to provide and license the Customer Data to PredictHQ for our use in accordance with these Terms and that PredictHQ's use of it in accordance with these Terms will not infringe any person’s rights; and
- the Customer Data does not contain any Personal Information, and Customer will notify PredictHQ immediately in writing if it becomes aware that any Personal Information is present in Customer Data provided.
d) Customer Data is Customer's Confidential Information and will be treated as such in accordance
with section 10.3 of these Terms. In respect of that Customer Data:
- i) PredictHQ will keep Customer Data confidential, and (except as required by applicable law) not disclose or use it for any purpose other than as authorised by Customer or expressly permitted by these Terms;
- ii) PredictHQ will maintain the security measures described in its Data Handling Policy; and
- iii) Customer can delete its Customer Data from PredictHQ systems at any time using the features in the Control Center. Customer acknowledges that, if it does so, it will no longer be able to use Beam or receive Insights and that such deletion will not apply to any Insights that have previously been generated using Customer's Customer Data, which will remain.
e) Reports and other insights:
- i) PredictHQ will use Customer Data to generate, through Beam, and deliver to Customer analysis and conclusions in graphical form via the PredictHQ Control Center and as a PDF report (Reports). Those Reports are provided to Customer free of charge. Additional data and derived insights can be provided by way of CSV export where included in PredictHQ Services purchased by Customer.
- ii) PredictHQ will own all IP Rights in the Reports (and all analysis and content contained within them) and all other Insights that may incorporate or use analysis or trends identified or generated through use of Customer Data. Customer agrees that it has no claim to any of those IP Rights. PredictHQ grants Customer a perpetual, royalty-free, transferable, worldwide license to use the Reports generated using its Customer Data for its internal business purposes.
3.8 Location Insights
- a) This section 3.8 applies to Customer's use of PredictHQ's Location Insights feature (to the extent it forms part of Customer's Service Plan). 'Location Insights' allows users to have forward-looking visibility of events taking place within a certain radius of a selected geographic location or a geographical area (a Location). Locations must be a place from which Customer (or its affiliates) conduct business, and the Location Insights feature must only be used for Customer's legitimate and lawful business purposes.
- b) Customer shall be responsible for entering accurate Location details and for ensuring that it is authorised to provide and license such details to PredictHQ for use in connection with provision of the Location Insights feature. PredictHQ will not publish or disclose to any third party any Location details provided to it by Customer.
4. Access and use restrictions
- 4.1 Customer agrees that Customer will use the PredictHQ Services, and any PredictHQ Data that Customer may access in the course of using the PredictHQ Services, solely for the Permitted Use, in accordance with these Terms, each applicable Order Form and all applicable laws.
4.2 Customer acknowledges that PredictHQ has expended significant resources gathering, assembling,
and compiling the PredictHQ Data, and that the PredictHQ Data is the valuable property of PredictHQ.
Customer further acknowledges that any PredictHQ Data provided to it under this Agreement is an original
- a) Storage: Customer may download and store within its own environment a copy of PredictHQ Data. Customer shall comply with any reasonable PredictHQ instructions relating to the means of download. Customer may use that stored PredictHQ Data for the purposes of displaying PredictHQ event data within its Approved Application(s) (as defined in the Order Form). Customer may not use, disclose or display the stored PredictHQ Data for any other use or purpose (except as expressly permitted by PredictHQ) subject to all other terms and use restrictions set out in this Agreement. Customer shall ensure that all stored PredictHQ Data is kept secure and is not accessed or used by anyone outside Customer's organization.
- b) Data Analysis: Customer may undertake Data Analysis on stored PredictHQ Data (where storage has been authorized by PredictHQ). “Data Analysis” means, in respect of the PredictHQ Data, the performance of any analysis, modelling, inspection, reasoning or other application of data science processes or tools, for the purposes of generating insights, reports, conclusions or other information.
- c) Data Enrichment: Customer may use stored PredictHQ Data (where storage has been authorized by PredictHQ) to create Derived Data; and publish, display or use that Derived Data within its Approved Application(s).
4.8 Unless agreed otherwise, whenever Customer displays PredictHQ Data on its website or within its app, it agrees to attribute those events to PredictHQ in compliance with PredictHQ's Attribution Policy (published on PredictHQ's website from time to time).
5. Intellectual Property
- 5.1 All right, title and interest (including all Intellectual Property Rights) in the PredictHQ Services, PredictHQ Data, and the platform, software and systems used to deliver the PredictHQ Services remain owned by PredictHQ and/or PredictHQ’s third party licensors. This includes any improvements made from time to time and any anonymous, aggregate usage data relating to Customer’s use of the PredictHQ Services. Customer may (but is not obligated to) provide suggestions, comments or other feedback to PredictHQ with respect to the PredictHQ Services (Feedback). PredictHQ acknowledges and agrees that all Feedback is provided 'AS IS' and without warranty of any kind. Customer shall, and hereby do, grant to PredictHQ a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
- 5.2 Subject to section 4.1 herein, PredictHQ grants to Customer a non-exclusive, limited, personal, non-sublicensable, non-transferable, revocable right and license to internally access and use the PredictHQ Services. Customer’s use of the PredictHQ Services does not grant or transfer any rights, title or interest to Customer in relation to the PredictHQ Services or PredictHQ Data. Customer’s only right under these Terms is to access and receive the PredictHQ Services that Customer has subscribed to, which includes an ability to view the PredictHQ Data.
- 5.3 All Intellectual Property Rights in PredictHQ Data remain vested in PredictHQ and PredictHQ’s licensors, and Customer’s rights are limited to viewing and (solely to the extent permitted under the Permitted Use) using the PredictHQ Data strictly in accordance with the terms of the Data License and these Terms. If Customer is granted access to the API, then notwithstanding the foregoing, Customer may access and use the PredictHQ Data via the API in accordance with the API Use and Restrictions set out in section 3.6.
- 5.4 Customer remains the owner of all Intellectual Property Rights in any Customer Data that Customer makes available to PredictHQ, and (subject to section 5.5) grants to PredictHQ a worldwide, non-exclusive, irrevocable, royalty-free, transferable license to use, store, copy, modify, make available and communicate the Customer Data for the limited purpose of performing PredictHQ’s obligations under these Terms.
- 5.5 Each party (Indemnitor) shall defend, indemnify, and hold harmless the other party, its Affiliates (as defined herein) and each of its and its Affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the Indemnitee) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (Losses), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the PredictHQ Services or PredictHQ Data (in the case of Customer as Indemnitor), or (ii) the PredictHQ Services (in the case of PredictHQ as Indemnitor), infringes, violates, or misappropriates any third party Intellectual Property Right or violates any applicable laws, rules or regulations (including but not limited to pricing discrimination and antitrust laws). Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of PredictHQ do not apply with respect to the PredictHQ Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by PredictHQ (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer’s specifications, (iii) modified after delivery by PredictHQ, (iv) combined with other products, processes or materials not provided by PredictHQ (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the PredictHQ Services is not strictly in accordance herewith.
6. Fees and Payment
- 6.1 Customer agrees to pay the Fees applicable to Customer, as set out on each applicable Order Form when Customer first subscribed to the PredictHQ Services.
- 6.2 Customer agrees that the Fees for each Order Form Renewal Term shall increase by ten percent (10%) as compared to the Fees for the immediately preceding Order Form Term.
- 6.3 All Fees are stated exclusive of all taxes or duties payable in respect of the products or services supplied under these Terms in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by PredictHQ in the jurisdiction in which Customer makes payment, Customer must pay to PredictHQ the amount of such taxes or duties in addition to any Fees owed under these Terms.
- 7.1 THE PREDICTHQ SERVICES ARE PROVIDED 'AS IS' AND PREDICTHQ GIVES NO WARRANTY OR REPRESENTATION REGARDING THE PREDICTHQ SERVICES, INCLUDING WARRANTIES THAT THEY WILL BE TIMELY, ACCURATE, AVAILABLE, OF A CERTAIN QUALITY, FREE FROM BUGS, DEFECTS, ERRORS OR VIRUSES, OR AS TO THE SPECIFIC RESULTS OR OUTCOME THAT MAY ARISE FROM CUSTOMER’S USE OF THE PREDICTHQ SERVICES. WITHOUT LIMITING THE FOREGOING, PREDICTHQ DOES NOT WARRANT THAT THE PREDICTHQ SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEY WILL BE SUITABLE FOR ANY PARTICULAR PURPOSE. TO AVOID DOUBT, ALL IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED IN SO FAR AS IS PERMITTED BY LAW, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- 7.2 PREDICTHQ DOES NOT ACCEPT ANY LIABILITY IN RESPECT OF THIRD PARTY DATA OR OTHER CONTENT AVAILABLE VIA THE PREDICTHQ SERVICES.
- 7.3 ALTHOUGH PREDICTHQ IMPLEMENTS SECURITY MEASURES TO HELP PROTECT PREDICTHQ SYSTEMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF THE PREDICTHQ SERVICES INVOLVES TRANSMISSION OF DATA OVER NETWORKS THAT ARE NOT OWNED, OPERATED OR CONTROLLED BY PREDICTHQ. PREDICTHQ IS NOT RESPONSIBLE FOR ANY DATA THAT IS LOST, CORRUPTED, INTERCEPTED, MODIFIED OR STORED ACROSS SUCH NETWORKS. CUSTOMER ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY LAW, PREDICTHQ CANNOT GUARANTEE THAT THE SECURITY MEASURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF DATA WILL ALWAYS BE SECURE OR THAT PREDICTHQ’S SECURITY MEASURES (OR THOSE OF PREDICTHQ’S THIRD PARTY SERVICE PROVIDERS) WILL ALWAYS BE INCAPABLE OF BEING HACKED OR CIRCUMVENTED BY UNAUTHORIZED THIRD PARTIES.
8. Limitation of Liability
- 8.1 EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OR THE PREDICTHQ SERVICES, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT EQUAL TO THE FEES PAYABLE BY CUSTOMER UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
8.2 SUBJECT TO SECTION 8.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR:
- a) LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, LOSS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR DAMAGE TO GOODWILL; OR
- b) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGE.
8.3 SECTIONS 8.1 AND 8.2 SHALL NOT LIMIT EITHER PARTY'S LIABILITY:
- a) TO PAY ANY AMOUNT DUE UNDER SECTION 6;
- b) FOR BREACH OF SECTION 4.5; OR
- c) WHEN SUCH LIABILITY MAY NOT BE LIMITED BY APPLICABLE LAW.
9. Support Services
9.1 During the Term, PredictHQ will provide support by:
- a) monitoring performance and operation of the PredictHQ Services;
- b) carrying out regular security checks on PredictHQ’s systems and software; and
- c) responding to support requests logged by Customer in accordance with section 9.2 below where the PredictHQ Services are failing to perform as intended (an Incident).
9.2 Upon discovery of an Incident, Customer may contact the PredictHQ Support Desk 24 hours a day, seven days a week by the following means:
- New Zealand: +64 9 222 3737
- United States: +1 (415) 523-9164
- Email: firstname.lastname@example.org
or by any other means PredictHQ may advise from time to time.
- 9.3 The Support Desk will respond to any action support requests logged in accordance with section 9.2 during the hours of 9am to 5pm Pacific Time on Business Days (Support Hours). If Customer asks PredictHQ to respond to any action support requests outside of Support Hours, additional support fees of USD$75 per hour shall apply.
- 9.4 PredictHQ will assign a priority based on the urgency and impact of the Incident on Customer as reasonably determined by PredictHQ.
- 9.5 Should an immediate resolution or workaround not be available following initial consultation with the Service Desk, PredictHQ will forward the issue to the appropriate production support groups.
- 9.6 PredictHQ will update Customer as appropriate on progress during the resolution, and will ask for confirmation from Customer that the PredictHQ Services have been restored to normal operation once resolution work has been completed.
- 9.7 PredictHQ will endeavour to respond to all support requests logged with the Service Desk within one Business Day.
9.8 PredictHQ has no obligation to provide support in respect of any Incidents or other issues
concerning or arising from:
- a) any systems or infrastructure used by Customer and not provided by PredictHQ;
- b) improper or unauthorized use of the PredictHQ Services;
- c) failure to comply with these Terms or directions issued by PredictHQ; or
- d) any third party data, systems or services.
- 9.1 During the Term, PredictHQ will provide support by:
- 10.1 No amendment to these Terms will be effective unless it is in writing and agreed to by the parties.
- 10.2 Neither party may assign or transfer any of its rights or obligations hereunder without the other party’s prior written consent (not to be unreasonably withheld), provided that either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement. Notwithstanding the foregoing, PredictHQ may assign all of its rights and obligations hereunder without such consent to any entity that directly or indirectly controls, is controlled by, or is under common control with PredictHQ, where 'control' means the ownership of, or the power to vote, at least fifty percent (50%) of the voting stock, shares or other equity interests of the equity, or the effective ability to control the management and direction of the entity (Affiliate).
- 10.3 Neither party will disclose the other party's Confidential Information to any person, or use such Confidential Information for any purpose other than to perform these Terms. Notwithstanding the foregoing, either party may disclose any of the other party's Confidential Information with the other party's prior written consent or if and to the extent disclosure is required by law (provided that the disclosing party gives the other party notice of the requirement as soon as practicable before such disclosure is made).
10.4 Any notice to be served under these Terms must be given in writing and sent to the following address(es):
- a) for notices to be delivered to Customer, to the address Customer nominates at the time of first subscribing to the PredictHQ Services or to the email provided in the Order From (or as Customer notifies PredictHQ from time to time); and
- b) for notices to be delivered to PredictHQ, by post to PredictHQ Limited, Floor 2 23 Customs Street East, Auckland 1010, New Zealand or an email copy to email@example.com.
- c) Notices are deemed delivered on the next Business Day after sending by email (unless the sender has been notified of a delivery failure) and three Business Days after sending by post.
- 10.5 These Terms constitute the entire agreement of the parties and supersede all prior agreements, arrangements, understandings and representations (whether oral or written) given by or made between the parties, relating to the matters dealt with in these Terms.
- 10.6 A party shall not be liable for any breach of these Terms (other than in respect of an obligation to pay any Fees) to the extent such breach is due to events or circumstances beyond its reasonable control.
- 10.7 Each party shall, at its own expense, promptly sign and deliver any documents, and do all things, which are reasonably required to give full effect to the provisions of these Terms.
- 10.8 The rights and remedies provided in these Terms are cumulative and not exclusive of any rights or remedies provided by these Terms or law.
- 10.9 If any provision of these Terms is illegal, invalid or unenforceable, that provision shall be read down to the extent necessary to make it legal, valid and enforceable.
- 10.10 A waiver of a right under these Terms is ineffective unless it is in writing.
- 10.11 No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
- 10.12 These Terms are governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties irrevocably submit to the exclusive jurisdiction and venue in the state and federal courts located in San Francisco, CA. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (JAMS) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, PredictHQ may bring a claim for equitable relief in any court with proper jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
- 10.13 Customer acknowledges and agrees that PredictHQ may use Customer’s name and logo to identify Customer as a customer of PredictHQ in marketing and promotional materials on written approval of Customer.
11.1 In these Terms:
API means any application programming interface that PredictHQ makes available for the purposes of accessing PredictHQ Data, or any subset of PredictHQ Data, from time to time (including, as at the date of these Terms, the Features API and Live TV Events API).
Business Day means any day other than a Saturday, a Sunday or a federal or California state holiday.
Commercial Use means the use of any PredictHQ Data or PredictHQ Services for the purpose of generating income or revenue of any kind, whether directly or indirectly.
Confidential Information means information disclosed by a party under or in connection with these Terms that is marked as confidential or which might reasonably be expected to be confidential in nature and, in respect of PredictHQ, includes the PredictHQ Data.
Customer Data means any data input entered by Customer or a User when using the PredictHQ Services and which is then stored and/or processed by PredictHQ (for example, any customer bookings or transactional data).
Data License means the license granted to the Customer in respect of the PredictHQ Data pursuant to section 4.2.
Derived Data means any data set, work or other material work created by the translation, enhancement, adaptation, arrangement, modification, application of algorithm or formulae, or any other alteration of the PredictHQ Data or combination with other data, whether or not it can be traced back to the PredictHQ Data.
Fees means the amounts payable by Customer for use of the PredictHQ Services.
Intellectual Property Rights or IP Rights means all intellectual property rights whether conferred by statute, at common law or in equity, including all copyright, rights in relation to inventions, trade secrets and know how, rights in relation to designs, rights in relation to trademarks, business names and domain names.
Permitted Use means: (a) the confidential internal use of PredictHQ Data in connection with Customer’s own business, subject always to the restrictions in section 4 of these Terms; and (b) any Permitted Use Extension(s) expressly agreed in writing in an Order Form duly executed by both Customer and PredictHQ, subject to the restrictions set out in section 4.7 of these Terms and/or the Order Form.
PredictHQ Data means any data, insights, analysis, conclusions, predictions, indexing or other information made available to Customer by PredictHQ in the course of providing the PredictHQ Services, and includes any stored or cached PredictHQ Data.
PredictHQ Services has the meaning given in the opening paragraph of these Terms.
Service Plan means the combination of PredictHQ Services, features, products, coverage, access rights, user or volume restrictions (and associated pricing) that Customer has subscribed to, as described in the Order Form.
Term means the Order Form Initial Term and any Order Form Renewal Terms.
User means any individual to whom Customer has given access to the PredictHQ Services, even if Customer did not authorize such use.
Version dated 8 July 2022
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