1. Your rights Subject to you buying the relevant User Subscriptions and paying the relevant Subscription Fees, and the other terms and conditions of this Agreement, Turtl grants you a worldwide, non-exclusive, non-transferable right to use the Services and the Documentation during the Subscription Term to create and edit Turtl Docs using the Software; to authorise Readers to access Turtl Docs by sending them a hyperlink to the Turtl Docs; and to analyse and use Content Analytics Data.
2. Our obligations We will supply Services substantially in accordance with the Documentation and with reasonable skill and care. If we fail to do so we will at our discretion use reasonable commercial endeavours to correct any non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. This is your only remedy for such failure.
This Agreement shall not prevent Turtl from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
3. Your obligations You agree to provide us with any information we may reasonably need in order to provide the Services, including graphics, logos, digital brand guidelines, custom fonts (where applicable) Customer Data, security access information and configuration services.
You must comply with all applicable laws and regulations with respect to your activities under this Agreement and shall be liable for obtaining all necessary rights, permissions and consents in respect of the distribution of such materials.
You must obtain and shall maintain all necessary licences, consents, and permissions necessary for Turtl, its contractors and agents to perform their obligations under this Agreement, including the Services;
You must ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
4. Proprietary rights Turtl and/or its licensors (as the case may be) own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
We have the right to anonymise Content Analytics Data and own all rights in and to all of such anonymised Content Analytics Data including the right to sell anonymous aggregated analytics data to third parties.
5.User Content. User Content Generally. Certain features of the Services may permit you to upload User Content to the Services, and to publish User Content on the Services. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Services
Limited License Grant to Turtl. By providing User Content to or via the Services, you grant Turtl a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
Limited License Grant to Other Users. By providing User Content to or via the Services to other users of the Services, including Readers, you grant those users a non-exclusive license to access and use that User Content as permitted by this Agreement and the functionality of the Services.
User Content Representations and Warranties. Turtl disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Services. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Turtl and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Turtl, the Services, and this Agreement;
b. your User Content, and the use of your User Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Turtl to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Turtl may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Turtl with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to this Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Turtl does not permit copyright-infringing activities on the Services.
Monitoring Content. Turtl does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that Turtl reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time Turtl chooses to monitor the content, Turtl still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
6. Confidentiality Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, without use of or reference to the other party’s Confidential Information.
Each party shall hold the other’s Confidential Information in confidence and, unless required to disclose it by law, by any court of competent jurisdiction or by any regulatory or administrative body, shall not unless otherwise permitted by this Agreement make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
Each party may disclose the other’s Confidential Information to those of its employees, agents and professional advisors who have a need to know the Confidential Information under this Agreement and each party shall take all reasonable steps to ensure that such employees, agents and/or professional advisors do not disclose Confidential Information in violation of the terms of this Agreement.
You acknowledge that details of the Services, user names and passwords issued to Authorised Users and the results of any performance tests of the Services, constitute our Confidential Information and Turtl acknowledges that the Customer Data constitutes your Confidential Information.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction, or as otherwise permitted by this Agreement.
7. Exclusion and Limitation of liability – YOUR ATTENTION IS DRAWN PARTICULARLY TO THIS CLAUSE. Nothing in this Agreement excludes the liability of either party for: (i) death or personal injury caused by the other party’s negligence; or (ii) fraud, gross negligence, or willful misconduct. To the fullest extent permitted by law, in no event will Turtl be liable for (i) any loss, destruction, alteration or disclosure of Customer Data; (ii) any unauthorised use of the Services; (iii) modification or alteration of the Services by anyone other than us; or (iv) any delays, delivery failures, or any other loss or damage resulting from any issues with availability or performance of Third Party Software that are outside of our control; or the transfer of data over communications networks and facilities, including the internet, and you acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities, or (v) any damage to your property (including your computer system or mobile devise used in connection with the Service).
We do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements.
Except as expressly and specifically provided in this Agreement: (i) you assume sole responsibility for results obtained from your use of the Services and the Documentation, and for conclusions drawn from such use, and we are not liable for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction; (ii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and (iii) the Services and the Documentation are provided to you on an “as is” basis, and, to the fullest extent permitted by applicable law, Turtl disclaims all warranties of any kind, whether express or implied, relating to the Service and Documentation and content available through the service, including (a) any implied warranty of merchantability, fitness for a particular purpose, title, quite enjoyment, or non-infringement, and (b) any warranty arising out of course of dealing, usage, or trade.
To the fullest extent permitted at law, in no event will Turtl be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement, and whether or not Turtl has been informed of the possibility of damage.
Without prejudice to the above, our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 100% of the total Subscription Fees paid or payable for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under this Agreement. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section will apply even if any limited remedy fails of its essential purpose.
8. Data protection To the extent Customer Data includes “personal data” (as defined in GDPR), the following terms set forth in this Section C.8 apply.
a. Definitions. In this clause “personal data”, “controller”, “processor”, “data subject” and “processing” have the meanings respectively set out in GDPR.
b. Compliance with data protection law. Both parties will comply with all applicable requirements of the Data Protection Legislation. We will comply with our Privacy Policy in respect of personal data we process as data controller, and our Security Policy generally in providing the Services.
c. Data processor clauses. We may process personal data on your behalf as a data processor when performing our obligations under this Agreement during the Subscription Term, namely personal data contained in or collected from Turtl Docs. (This may include names and email addresses and/or non-anonymised Content Analytics Data.) The following clauses apply to Turtl acting as a data processor.
We will not transfer or store such personal data outside the UK or European Economic Area without your prior written consent and unless: (i) you or we have provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (iv) we comply with reasonable instructions notified to us in advance by you with respect to the processing of the personal data.
You must ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf.
As a data processor, we will (and will take steps to ensure that any person acting under our authority will) process the personal data only on documented instructions from you, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by EU or UK law; in which case, we will inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
We both agree to take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technological and organisational measures adopted by it).
We will assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
We will notify you without undue delay on becoming aware of a personal data breach.
We will if requested in writing delete or return personal data and copies of such data to you on termination of the Agreement unless required by applicable law to store the personal data; and maintain complete and accurate records and information to demonstrate our compliance with this clause and allow for audits by you or your designated auditor.
We will not engage a sub-processor of personal data without prior specific or general written authorisation from you, and not unless the sub-processing agreement contains equivalent data protection provisions to those contained in this Agreement. We shall remain fully liable to you for the performance of the sub-processor’s obligations under Data Protection Legislation.
You agree to us appointing the following sub-processors: (i) Turtl Surf & Immerse Limited (applicable to US customers); (ii) Amazon Web Services, Inc. or equivalent Cloud Storage Account suppliers; (iii) Databricks, Inc.; (iv) Hevo Data, Inc.; (v) Firebolt Analytics, Inc.; (vi) Datadog, Inc.; and (vii) Fastly, Inc. or equivalent content delivery network suppliers, and you consent to the transfer of personal data to the US for such purposes.
9. General
a.Force Majeure. Turtl shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including failure of a telecommunications network, provided that you is notified of such an event and its expected duration.
b.Amendment. No amendment of this Agreement shall be effective unless it is in writing and signed by the parties.
c. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
d. Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
e. Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
f.Entire Agreement. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
g. Assignment. You may not, without the prior written consent of Turtl, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Turtl may at any time freely assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
h. No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
i.Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
j. Notices. Any notice under this Agreement shall be in writing and delivered by hand or sent by overnight courier to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or only if no physical address is provided, sent by email to the other party’s email address as set out in the Order Form. A correctly addressed notice delivered by hand or sent by overnight courier shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9 am on the second Business Day following delivery). A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
