Effective date: Aug. 1, 2022
These terms of service (“Terms of Service”) set forth the terms and conditions under which ANDX, LLC dba ANDX and includes subsidiaries ANDX Inc. and MX ANDX S.A. de C.V. (“ANDX”) provides its customer feedback management platform and the products and services offered by ANDX on or through such platform (collectively, the “Services”) to you and describe how the Services may be accessed and used. These Terms of Service do not apply to Services which are made available or provided by ANDX through our Enterprise channel.
The Services are subject to additional terms (“Additional Terms”), which are incorporated herein by reference. These Terms of Service and any applicable Additional Terms are collectively referred to as these “Terms”. These Terms may be updated from time to time as described herein.
ACCEPTANCE. PLEASE READ THESE TERMS CAREFULLY. BY USING THE SERVICES, BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OF THESE TERMS, OR BY EXECUTING A DOCUMENT THAT REFERENCES THEM, YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT USE THE SERVICES.
If you are an individual, you may only use the Services if you are of the age of majority in the jurisdiction in which you reside and have the power and capacity to form a contract with ANDX. If you are not of the age of majority in your jurisdiction or do not have the power and capacity to form a contract, you may not use the Services. If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and represent and warrant that (a) the organization is validly formed and existing under the laws of its jurisdiction of formation, (b) the organization has full power and authority to enter into these Terms, and (c) you have the legal authority to bind the organization to these Terms. In such case, “you” and “your” will refer to that organization.
You agree to pay to ANDX any fees for the Services you purchase or use in accordance with the pricing and payment terms presented to you for those Services. Where applicable, you will be billed using the billing method you select through your account management page. You are responsible for keeping your billing information up to date. If you elect to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify ANDX of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or as required by law.
Unless otherwise indicated, Services are billed on a subscription basis (referred to “Subscriptions”). You will be billed in advance on a recurring, periodic basis, typically monthly or annually, depending on the subscription plan you select when purchasing a Subscription (each such period, a “billing cycle”). Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your Account Settings → General page. You may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating.
Unless otherwise indicated, prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, consumption, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying Taxes associated with your purchase, unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate acceptable to the appropriate taxing authority and/or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such document current and accurate. If you are required by law to withhold any Taxes from your payments to ANDX, you must provide ANDX with an official tax receipt or other appropriate documentation to support such payments.
ANDX may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. ANDX will provide you with advance notice of any change in fees.
If you have been issued an account by ANDX in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not ANDX, are responsible for any activity occurring in your account (other than activity that ANDX is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you agree to notify ANDX immediately. Accounts may not be shared and may only be used by one individual per account.
ANDX occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
You are responsible for maintaining, protecting, and making backups of your Content (as hereinafter defined). To the extent permitted by applicable law, ANDX will not be liable for any failure to store, or for loss or corruption of, your Content.
ANDX may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to notify you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.
ANDX will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our Privacy Policies) or with your prior written consent. However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by ANDX); (b) was lawfully known to ANDX before receiving it from you; (c) is received by ANDX from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by ANDX without reference to your Content. ANDX may disclose your Content when required by law or legal process, but only after ANDX, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
ANDX will store and process your Content in a manner consistent with industry security standards. ANDX has implemented appropriate technical, organizational, and administrative systems, policies and procedures designed to help ensure the security, integrity and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content. If ANDX becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (a “Security Incident”), ANDX will take reasonable steps to notify you without undue delay and in any event, in accordance with applicable law. Further, ANDX will reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by ANDX.
You retain ownership of all of your intellectual property rights in and to your Content. ANDX does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
You grant ANDX a non-exclusive, worldwide, royalty free, fully paid up, sub-licensable, transferable license to compile, collect, use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by our Privacy Policies and in Section 4.3. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of ANDX’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide ANDX with feedback about the Services, we may use your feedback without any compensation or obligation to you.
You acknowledge and agree that ANDX has the right to anonymize (de-identify), and aggregate data derived from your Content, which anonymized and aggregated data ANDX may use for its analytical and other business purposes, both during and after the termination or expiration of these Terms.
ANDX, its affiliates and/or licensors own all intellectual property rights in and related to the Services. All rights not expressly granted to you are reserved to ANDX and its licensors. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). These Terms do not grant you any right to use ANDX’s trademarks or other brand elements. Trademarks displayed in conjunction with the Services are the property of their respective owners.
If you submit any feedback, comments, or suggestions to us regarding our Services, we may use and share them for any purpose without any compensation or obligation to you.
The Services display content provided by others that is not owned by ANDX. Such content is the sole responsibility of the person or entity that makes it available. You are responsible for your own Content, and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. ANDX is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner or are otherwise authorized by law to do so.
In order to ensure compliance with legal obligations, ANDX may be required to review certain content submitted to the Services to determine whether it is unlawful or violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, ANDX otherwise has no obligation to monitor or review any content submitted to the Services.
You represent, warrant, and agree that you will comply with all laws and regulations applicable to your use of the Services.
You may access and use the Services only for lawful purposes and in accordance with these Terms. You are responsible for your conduct, Content and communications with others while using the Services. You must comply with the following requirements when using the Services:
You may terminate your Subscription and delete your account at any time through your Account Settings → General page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) ANDX has materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; (b) a refund is required by law; or (c) we determine, in our sole discretion, a refund is appropriate. For clarity, we will not grant a refund where you have used the Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
ANDX may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. ANDX may terminate your Subscription for any reason at any time by providing at least 90 days’ written notice to you and will provide you with a pro rata refund for any period of time you did not use in that billing cycle. ANDX may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after ANDX has so notified you in writing; (b) you cease your business operations or become subject to insolvency or bankruptcy proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date.
In addition, ANDX may limit or suspend your use of the Services: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. If we limit or suspend your use of the Services, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from the Services, however, there may be time sensitive situations where we determine that we need to take immediate action without notice. ANDX will use commercially reasonable efforts to limit the duration and scope of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. ANDX has no obligation to retain your Content upon termination of the applicable Services.
If ANDX stops providing the Services to you because you repeatedly or egregiously breach these Terms, ANDX may take measures to prevent the further use of the Services by you, including blocking your IP address.
The following sections will survive the termination or expiration of these Terms: 1.0, 3.0, 4.2, 8.0, 9.0, 10.0, 12.0 and 13.0.
While ANDX uses commercially reasonable efforts to keep our online Services up, they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ANDX INC. DOES NOT MAKE ANY WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY REPRESENTATIONS OR WARRANTIES REGARDING AVAILABILITY, RELIABILITY, SUITABILITY OR ACCURACY OF THE SERVICES OR RESULTS TO BE DERIVED THEREFROM OR THAT THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES OR CONDITIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANDX, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, PROFITS OR GOODWILL (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ANDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF ANDX, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO ANDX FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.
The laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, to the extent such laws apply, nothing in these Terms limits any of those consumer rights. Further, nothing in these Terms shall exclude or limit liability for fraud, fraudulent misrepresentation or willful misconduct.
You agree to indemnify and hold harmless ANDX and its affiliates and their respective directors, officers, agents, and employees (collectively, the “Indemnified Entities”) from all liabilities, damages, and costs, including settlement costs and reasonable legal fees (collectively, “Indemnification Amounts”) arising out of (a) any third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users; and (b) any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to ensure your tax exemption certificate, if any, accurately reflects your current tax status.
ANDX reserves the right, in our sole discretion, to revise and update these Terms from time to time, including to reflect changes in applicable law or updates to the Services, and to account for new Services or functionality. The most current version of these Terms will always be posted on the ANDX website. If an amendment is material, as determined in our sole discretion, ANDX will notify you by email. Notice of amendments may also be posted upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require ANDX to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not agree to any changes made to these Terms, you should stop using the Services as by continuing to use the Services you indicate your agreement to be bound by the updated terms.
ANDX may add, alter or remove features or functionality from the Services it provides to you at any time in our sole discretion without prior notice. ANDX may also limit, suspend or discontinue Services provided to you at its discretion. If ANDX discontinues any of the Services, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from those Services. ANDX may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before doing so if it materially impacts you and if practicable under the circumstances.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by Canada, the United States or other applicable law from receiving the Services or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from ANDX. You agree to ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by Canada or the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.
These Terms are governed by and will be construed in accordance with the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule (whether of the laws of the Province of Ontario or any other jurisdiction) and notwithstanding your domicile, residence or physical location. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the courts of the Province of Ontario located in Toronto, Ontario, Canada, and/or the Federal Court of Canada, with respect to the Services and/or the subject matter of these Terms. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to these Terms.
These Terms (including the Additional Terms) constitute the entire agreement between you and ANDX with respect to the subject matter hereof, and supersede any other prior or contemporaneous agreements, terms and conditions, representations and warranties, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void and of no effect.
If any provision of these Terms is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction in any jurisdiction, that provision will be severed and the remainder of the provisions will remain in full effect, and such invalidity, illegality or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction.
No failure to exercise, or delay in exercising, any right or remedy arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercise thereof or the exercise of any other right or remedy.
You may not assign these Terms without ANDX’s prior written consent, which may be withheld in ANDX’s sole discretion. ANDX may assign these Terms at any time without notice to you.
The relationship between you and ANDX is that of independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by these Terms.
Except for the Indemnified Entities under Section 8.1, there are no third-party beneficiaries to these Terms.
ANDX may publish links in the Services to internet websites maintained by third parties. These Terms do not apply to any such third-party websites. ANDX does not represent or warrant that it has reviewed such third-party websites and is not responsible for them or any content appearing on them or for any loss or damage that may arise from your use of them. You are subject to any terms and conditions and privacy policies of any such third-party websites.
ANDX may identify you (by name and logo) as a customer of ANDX’s Services on our website and other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
References to “ANDX”, “we”, “us”, and “our” are references to ANDX with offices located in Toronto, Ontario, Canada. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
To the extent any conflict exists, the Additional Terms prevail over these Terms of Service with respect to the Services to which the Additional Terms apply.
ANDX responds to notices of alleged copyright infringement in accordance with applicable law. If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify us at firstname.lastname@example.org. Claims of copyright infringement should follow the process outlined under applicable law.
Should you become aware of any misuse of the Services, you may report it to us at email@example.com.
These Terms are prepared and written in English. To the extent that any translated version conflicts with the English version, the English version controls, except were prohibited by applicable law.
If you are located in one of the following locations, the terms thereunder apply (with the exception of section EU2, which applies to you irrespective of geographic location if you are a “data controller” as referred to in the GDPR).
EU1. Right of Withdrawal.
In certain European countries, you have a legal right to cancel Subscriptions within a certain period of time.
EU2. GDPR Terms for Customers
EU 2.1 Effective Date and Definitions.
These additional terms will apply to you from May 25, 2018, where you are a customer operating as a “data controller” of “personal data” of “data subjects” located in the EU (as those terms are defined in the GDPR) in your use of the Services.
The terms “personal data”, “data subject”, “processing” and “processor” shall have the meanings given to those terms respectively in the GDPR.
EU 2.2 Processing Instruction.
By requesting the Services and agreeing to these Terms and ANDX’s Privacy Policies, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.
EU 2.3 Customer Obligations.
You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to ANDX so that ANDX may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by ANDX in the provision of the Services.
EU 2.4 ANDX Obligations
Where ANDX is processing personal data on your behalf, it will:
(a) only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and the ANDX Privacy Policies constitute such documented instructions.
(b) ensure that all ANDX personnel involved in the processing of personal data have committed themselves to confidentiality.
(c) where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by ANDX and is not otherwise available to you through your account and user areas or on ANDX websites, provided that you provide ANDX with at least 14 days’ written notice of such an information request;
(d) promptly notify you of all requests received directly from a data subject in respect of that data subject’s personal data submitted through the Services.
(e) upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 9-12 months after data is deleted from an account); and
(f) to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.
EU 2.5 ANDX sub-processors.
ANDX uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorization to ANDX to engage onward sub-processors, subject to compliance with the requirements set out here. If you object to a particular sub-processor, who we cannot disassociate from your Services, your sole remedy will be to terminate your subscription relating to the Services that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.
EU 2.6 Liability.
ANDX will be liable for the acts and omissions of its sub-processors to the same extent ANDX would be liable if performing the services of each of those sub-processors directly under these Terms, except as otherwise set forth in these Terms and ANDX ensures that all sub-processors on the sub-processor list are bound by contractual terms that are in all material respects no less onerous than those contained in these Terms.
EU 2.7 Security Measures.
ANDX has, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of the Services and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data. At reasonable intervals, ANDX tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.
EU 2.8 Audits.
You will allow one month for ANDX to respond to any audit request which you make. No person/party conducting an audit on your behalf, shall be, or shall act on behalf of, a competitor of ANDX (“Auditor”). You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same year (in which circumstances you and ANDX will, in advance of any such audits, agree upon a reasonable reimbursement rate for ANDX’s audit expenses). The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):
(a) ANDX agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of ANDX’s (or ANDX affiliate’s) most recent penetration tests, which summary shall include remedial actions taken by ANDX resulting from such penetration tests.
(b) The scope of the certifications and penetration tests provided will be limited to ANDX systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by ANDX.
(c) You will promptly notify and provide ANDX with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.
The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights as against ANDX.
EU 2.9 Liability for Data Processing.
The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Section EU12 shall be as set out in these terms, unless otherwise agreed in writing.
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