Terms of Service

1. Parties and definitions

In these Terms the following expressions have the meanings set out below, and the singular includes the plural where the context so admits.

• "Platform" or "AnalyzeIt^™" means the hosted software service operated by AnalyzeIt^™ comprising project set-up, upload of packaging artwork and pack shots, predicted visual-attention analysis, area-of-interest scoring, assessment against the Client's brief and strategy, route comparison and report generation, together with all associated tools, interfaces and documentation.
• "Client" means the business entity that places an order with AnalyzeIt^™ or whose personnel are issued with Platform credentials, and includes its Authorized Users.
• "Client Materials" means all packaging artwork, pack shots, product images, briefs, strategy documents, brand guidelines, trade marks, text and other materials supplied by or on behalf of the Client for processing by the Platform or by AnalyzeIt^™.
• "Deliverables" or "Reports" means the analysis outputs delivered by AnalyzeIt^™ under an Order, including attention heatmaps, area-of-interest scores, comparison grids, insights and single-pack or multi-pack reports.
• "Order" means an accepted written order, statement of work, subscription confirmation or quotation issued by AnalyzeIt^™ and accepted by the Client.
• "Platform IP" means the Platform, its software, models, model configurations, scoring methods, area-of-interest logic, prompts, pipelines, workflows, report templates, know-how, and all intellectual property rights therein.

2. Description of the service

AnalyzeIt^™ is a visual attention analysis service for packaging design. Depending on the Order, the service may comprise: (a) creation of analysis projects and intake of the Client's brief and strategy; (b) upload of pack shots and artwork for any panel of a pack — front, back and sides — as well as claims and whole ranges; (c) predicted visual-attention analysis of each upload, producing attention heatmaps and related scores; (d) definition and ranking of areas of interest, such as logo, variant name and claims, and scoring of each area; (e) assessment of the results against the Client's brief and strategy; (f) side-by-side comparison of design routes; and (g) generation of structured single-pack and multi-pack Reports.

Predicted attention outputs are produced by statistical models trained on eye-tracking data. They are estimates of where attention is likely to land on a design; they are not a study of real shoppers and do not measure purchase behaviour.

AnalyzeIt^™ may develop, modify and improve the Platform, including the models and pipelines it uses, provided that no change materially reduces the core functionality contracted for during the term of a paid Order.

3. Accounts, Authorized Users and acceptable use

Accounts are issued to named individuals authorized by the Client ("Authorized Users"). The Client is responsible for keeping credentials and access codes secure, for all activity conducted under its accounts, and for ensuring that its Authorized Users comply with these Terms. Credentials must not be shared. AnalyzeIt^™ may require multi-factor authentication and may suspend an account where it reasonably suspects unauthorized access or misuse.

The Client shall not, and shall not permit any person to:

• upload material that is unlawful, defamatory, obscene, or that infringes the rights of any third party;
• attempt to access data belonging to another customer, or to probe, scan or circumvent the security controls of the Platform;
• use the Platform, or any output of it, to train, benchmark or develop a competing attention-prediction or design-analysis service;
• reverse engineer, decompile or attempt to extract the models, scoring methods, prompts or pipelines comprised in the Platform IP, except to the extent such restriction is prohibited by law;
• resell or provide access to the Platform to any third party except as expressly permitted in an Order; or
• use the Platform to analyse imagery depicting identifiable individuals without a lawful basis and all necessary consents.

4. Client Materials and license to process

The Client retains all right, title and interest in the Client Materials. The Client grants AnalyzeIt^™ a non-exclusive, worldwide, royalty-free license, for the duration of the Order and for such further period as is necessary to fulfill it, to host, store, reproduce, transmit, adapt and process the Client Materials, and to make them available to AnalyzeIt^™'s subprocessors and AI and analysis infrastructure providers, in each case solely for the purpose of providing the service and producing the Deliverables.

The Client warrants that it owns or is validly licensed to use all Client Materials, that it has all rights, consents and permissions necessary to grant the license in this clause, and that AnalyzeIt^™'s processing of the Client Materials in accordance with these Terms will not infringe the rights of any third party. AnalyzeIt^™ does not use identifiable Client Materials to train models for the benefit of other customers.

5. Deliverables, ownership and intellectual property

Upon receipt by AnalyzeIt^™ of full payment of all sums due under the relevant Order, AnalyzeIt^™ hereby assigns to the Client, with full title guarantee, all copyright and other intellectual property rights subsisting in the Reports delivered under that Order, together with an unrestricted, perpetual, worldwide, irrevocable and fully paid-up license to use, reproduce, adapt, distribute and share those Reports for any lawful business purpose, including internal decision-making, presentations to retailers, partners and agencies, and inclusion in the Client's own design documentation. The Client's ownership is not limited by channel, territory, media or duration, and no further usage fee is payable.

To the extent that any assignment of future copyright is required, AnalyzeIt^™ shall execute such further documents as the Client may reasonably request, at the Client's cost, to give effect to this clause.

Nothing in these Terms transfers any right in the Platform IP. AnalyzeIt^™ and its licensors retain all right, title and interest in the Platform, its software, models, model configurations, scoring methods, area-of-interest logic, prompts, pipelines, workflows, report templates and design, know-how and documentation, and in all improvements to them. AnalyzeIt^™ may use anonymised, aggregated technical and usage data that does not identify the Client, its products or its artwork to operate, secure and improve the Platform.

The Client acknowledges that Reports contain machine-generated analysis and that copyright may not subsist in every element of them in every jurisdiction. Where protection does not subsist as a matter of law, the assignment above operates to the fullest extent that rights exist and, in respect of any element in which no copyright subsists, AnalyzeIt^™ shall assert no rights against the Client's use of it. Heatmaps and scores are derived from the Client's own artwork, in which the Client retains all rights.

6. Fees, payment and taxes

Fees are as stated in the applicable Order. Unless otherwise agreed in writing, invoices are payable within thirty (30) days of the invoice date, in the currency stated, without set-off or deduction. All fees are exclusive of sales, use, value added, gross receipts and similar transaction taxes, and of any withholding taxes, each of which shall be added or borne by the Client at the applicable rate.

AnalyzeIt^™ may charge interest on overdue sums at the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, accruing daily, together with reasonable costs of collection. Where payment is overdue by more than fourteen (14) days AnalyzeIt^™ may suspend delivery of Deliverables and access to the Platform, on notice, until payment is received. Assignment of rights in Deliverables under clause 5 is conditional on full payment.

7. Warranties and disclaimers

AnalyzeIt^™ warrants that it will provide the services with reasonable skill and care, in accordance with good industry practice.

The Client acknowledges the inherent characteristics of predictive attention analysis: outputs are statistical estimates, not measurements of real shoppers; results may vary between model versions and between runs; scores depend on the quality, resolution and framing of the material uploaded; and predicted attention is not the same as purchase intent, sales performance or performance on shelf. AnalyzeIt^™ does not warrant that any particular commercial result will follow from a design decision informed by a Report, that a Report identifies every strength or weakness of a design, or that the Client's artwork satisfies any regulatory, labelling or advertising standard applicable to the Client's market. The Client is solely responsible for its design decisions, for reviewing each Report before relying on it, and for the compliance of its packaging with applicable advertising, food-information and consumer-protection law. Approval of a Deliverable by the Client constitutes acceptance of it.

EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS, THE PLATFORM AND ALL DELIVERABLES ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND AnalyzeIt^™ DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. AnalyzeIt^™ DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PLATFORM and may carry out maintenance, giving reasonable notice where practicable. Some jurisdictions do not permit the exclusion of certain warranties, so parts of this paragraph may not apply to the Client.

8. Limitation of liability

Nothing in these Terms excludes or limits either party's liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be excluded or limited under applicable law.

SUBJECT TO THE PARAGRAPH ABOVE, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST ANTICIPATED SAVINGS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SUBJECT TO THE FIRST PARAGRAPH OF THIS CLAUSE, AnalyzeIt^™'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND ALL ORDERS SHALL NOT EXCEED THE GREATER OF (i) THE TOTAL FEES PAID BY THE CLIENT TO AnalyzeIt^™ IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (ii) FIVE THOUSAND US DOLLARS (US$5,000).

9. Indemnities

The Client shall indemnify AnalyzeIt^™ against all losses, liabilities, damages, costs and reasonable legal expenses arising out of or in connection with any third-party claim that the Client Materials, or AnalyzeIt^™'s permitted processing of them, infringe that third party's intellectual property, privacy or other rights, or arising out of the Client's use of the Deliverables in breach of these Terms or of applicable law.

AnalyzeIt^™ shall indemnify the Client against all losses, liabilities, damages, costs and reasonable legal expenses arising out of any third-party claim that the Client's use of the Platform, as supplied by AnalyzeIt^™ and used in accordance with these Terms, infringes that third party's intellectual property rights, provided that the Client notifies AnalyzeIt^™ promptly, grants AnalyzeIt^™ sole control of the defense and settlement, and provides reasonable assistance. This indemnity does not apply to claims arising from Client Materials or from modification or misuse of the Platform.

10. Term, suspension and termination

These Terms take effect on the earlier of account activation and acceptance of the first Order and continue until terminated. Subscriptions and recurring Orders renew as stated in the Order and may be cancelled with effect from the end of the then-current billing period.

Either party may terminate immediately by written notice if the other commits a material breach that it fails to remedy within thirty (30) days of notice requiring remedy, or becomes insolvent, enters administration, has a receiver appointed, or ceases or threatens to cease to carry on business. AnalyzeIt^™ may suspend access immediately where necessary to protect the Platform, its other customers or any person's safety, or where required by law.

On termination: accrued fees remain payable; Deliverables already paid for remain the Client's property under clause 5; and clauses 4, 5, 7, 8, 9, 11, 12 and 13 survive. Client data is dealt with under the Data Processing Agreement.

11. Confidentiality

Each party shall keep confidential all non-public information disclosed by the other that is identified as confidential or would reasonably be regarded as such, including unreleased products, packaging designs, design routes, briefs, strategy, launch plans, pricing, prompts and technical information. Confidential information may be disclosed only to those personnel and professional advisers who need it, on equivalent terms, and shall be used only for the purposes of these Terms. These obligations do not apply to information that is or becomes public otherwise than by breach, was lawfully known before disclosure, or is required to be disclosed by law or a competent authority. This clause survives termination for five (5) years.

12. Force majeure

Neither party shall be in breach of these Terms, nor liable for any delay or failure in performance, arising from an event beyond its reasonable control, including act of God, flood, fire, epidemic, war, civil unrest, terrorism, industrial action, failure of utilities or telecommunications, failure or unavailability of third-party cloud, AI or analysis infrastructure, or compliance with law or government order. The affected party shall notify the other and use reasonable endeavours to mitigate. If the event continues for more than sixty (60) days either party may terminate the affected Order by written notice.

13. General

Entire agreement. These Terms, together with the applicable Order, the Privacy Policy and the Data Processing Agreement, constitute the entire agreement between the parties and supersede all prior statements, save that nothing limits liability for fraudulent misrepresentation. In the event of conflict, the Order prevails over these Terms, and the Data Processing Agreement prevails in respect of the processing of personal data.

Assignment. The Client may not assign, transfer or sub-contract its rights or obligations without AnalyzeIt^™'s prior written consent. AnalyzeIt^™ may assign or novate these Terms to a successor of its business or assets on notice, and may use sub-contractors provided it remains responsible for their performance.

Notices. Notices shall be given in writing to the principal business address above, or by email to orchestrator@analyze-it.io and to the Client's registered address or nominated account email, and are deemed received on delivery or, if by email, on the next business day.

No third-party beneficiaries. These Terms are for the sole benefit of the parties and their permitted successors and assigns, and no other person has any right to enforce any of their terms.

Waiver, severance and variation. No failure or delay in exercising a right operates as a waiver of it. If any provision is held invalid or unenforceable, it shall be modified to the minimum extent necessary or, failing that, severed, without affecting the remainder. Variations must be in writing and signed by authorized representatives of both parties. Nothing in these Terms creates a partnership, joint venture or relationship of employment or agency.

14. Governing law and venue

These Terms, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them, their subject matter or formation, are governed by and construed in accordance with the laws of the State of Illinois, United States, without regard to its conflict-of-laws rules, and excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois, and waive any objection to venue or inconvenient forum in those courts.

15. Contact

Tjarks and Tjarks Design LLC, an Illinois limited liability company, 111 West Jackson Blvd, Chicago, IL 60604, United States. Contractual inquiries: orchestrator@analyze-it.io.