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Terms and Conditions

Pinpoint Terms and Conditions

Updated: 19th January 2024

This Pinpoint Sales Agreement (the “Agreement”) is effective as of the Service Start Date listed on an applicable the Order Form (the “Effective Date”) between The Infuse Group (t/a Pinpoint Software) with a place of business at One Waverley Place, St Helier, Jersey, JE1 2PP (the “Company”), and the Customer listed on the applicable Order Form.

1.

SaaS Services and Support

  1. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Customer the services described on the Order Form (“Services”).
  2. Notwithstanding clause 7.1, the Company will use all reasonable commercial efforts to ensure 99.5% service availability (the “Uptime”) in any calendar month (the “Uptime Target”).
  3. Uptime is calculated using monitoring software Pingdom and can be tracked at https://status.pinpoint.support/.
  4. If the Company fails to achieve the Uptime Target, the Customer may claim for credits against future periods of service (the “Service Credits”) according to the following schedule:Three (3) days of Services added to the end of the Customer’s Service Term at no charge to the Customer if the Uptime for any calendar month is between 99% and 99.5%.Seven (7) days of Services added to the end of the Customer’s Service Term at no charge to the Customer if the Uptime for any calendar month is between 97% and 99%.Fourteen (14) days of Services added to the end of the Customer’s Service Term at no charge to the Customer if the Uptime for any calendar month is between 95% and 97%.Thirty (30) days of Services added to the end of the Customer’s Service Term at no charge to the Customer if the Uptime for any calendar month is less than 95%.
  5. In order to receive the Service Credits, the Customer must notify the Company by email or otherwise in writing within thirty (30) days from the time the Customer becomes eligible to receive Service Credits.
  6. The aggregate maximum number of Service Credits the Customer can claim in a single calendar month shall not exceed thirty days of Services added to the end of Customer’s Service Term. Service Credits may not be exchanged for, or converted to, monetary compensation.

 

2.

Restrictions and Responsibilities

  1. The Customer agrees to comply, at all times, with the Company’s Acceptable Use Policy as may be updated from time to time.
  2. The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with terms of this Agreement and all applicable laws and regulations. The Customer hereby agrees to indemnify the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with the Customer’s breach of this Agreement. Although the Company has no obligation to monitor the Customer’s use of the Services, the Company may do so and  may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
  3. The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without the Customer’s knowledge or consent.
3.

Customer Data

  1. The Company may process personal data submitted by the Customer to the Pinpoint platform In the course of providing the Services. The Customer and the Company each agree to comply with the Company’s Data Processing Addendum, as may be updated from time to time, in connection with such processing.
  2. In the event of any conflict or inconsistency between this Agreement and the Data Processing Addendum, the Data Processing Addendum shall prevail.
4.

Confidentiality: Proprietary Rights

  1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality, pricing, and performance of the Service. Proprietary Information of the Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).
  2. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use  or divulge to any third person any such Proprietary Information, except to (i) those of its personnel who are required in the course of their duties to receive it for the provision of the Services; and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, regulation, or governmental or regulatory body which is lawfully entitled to require the disclosure (and in each such case, the Receiving Party shall, if legally permissible, notify the Disclosing Party of the requirement as soon as reasonably practicable and use commercially reasonable endeavours to discuss with the Disclosing Party and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law).
  3. The Disclosing Party agrees that the foregoing shall not apply with respect to any information: (i) after five (5) years following the disclosure thereof; or (ii) any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
  4. The Customer shall own all right, title and interest in and to the Customer Data. The Customer hereby grants to the Company a worldwide, non-exclusive, irrevocable (for the term of the Agreement only), royalty free licence during the term of the Agreement to use the Customer Data for the sole purpose of providing the Services as set out in this Agreement or otherwise agreed to in writing by the Customer.
  5. The Company shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto, (b) software, documentation or data related to the Services, (c) any software, applications, inventions or other technology developed in connection with the Services, and (d) all intellectual property rights related to any of the foregoing.
  6. The Customer acknowledges that the Company may use the Customer Data to develop improvements, updates, upgrades, modifications, or derivative works thereof to improve the performance and functionality of the Services.
  7. The Customer shall grant the Company permission to use the Customer’s name and logo for the purpose of marketing and selling the Services to third parties.
5.

Payment of Fees

  1. The Customer will pay the Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If the Customer’s use of the Services exceeds the terms of the Acceptable Use Policy, the Company reserves the right to suspend the Services until the Customer pays the additional fees notified to the Customer in writing.
  2. The Company may increase the Fees by 10% on each anniversary of the Service Start Date without notice to the Customer. In addition, the Company reserves the right to increase the Fees at the end of the Initial Service Term or then current renewal term (as defined In the Order Form) to reflect any changes In the Customer’s use of the Services, upon sixty (60) days prior notice to the Customer (which may be sent by email).  The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company within thirty (30) days of the date of issue of the invoice.
  3. If the Company has not received payment by the due date, and without prejudice to any other rights and remedies of the Company, the Company may, without liability: (i) disable the Customer’s access to all or part of the Services until the invoice(s) concerned are paid in full; and/or (ii) charge the Customer interest on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment, plus all expenses of collection.
  4. Fees are payable in the currency detailed in the Order Form and are non-cancellable and non-refundable. Fees are stated exclusive of value added or other applicable sales tax, which shall be added to the Company’s invoice(s) at the appropriate rate.
6.

Term and Termination

  1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then- current term.
  2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice  if (i) the other party materially breaches any of the terms or conditions of this Agreement and where such breach is capable of remedy, fails to remedy the breach within ten (10) days of being notified to do so; (ii) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) calendar days after being notified in writing to make such payment; or (iii) the other party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof.
  3. The Customer will pay in full all Fees for the Services up to and including the last day on which the Services are provided.
  4. Those sections of this Agreement that expressly or by implication are intended to continue in force on or after termination including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability, shall remain in full force and effect.
7.

Warranty and Disclaimer

  1. The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption, but shall not be responsible for any losses caused by such disruption.
  2. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. TO THE EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND.
8.

Indemnity

  1. In this clause 8, “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  2. The Company shall defend the Customer against any third party claim that the use of the Services in accordance with this Agreement infringes any third party Intellectual Property Right and shall indemnify the Customer for and against any amounts awarded against the Customer in judgement or settlement of such claims, provided that (i) the Company is given prompt notice of such claim; (ii) the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; (iii) the Company is given sole authority to defend or settle the claim; and (iv) the Customer makes no admission of liability or fault itself or on behalf of the Company.
  3. In the defence or settlement of any claim pursuant to clause 8.3, the Company may at its sole option and expense either: (i) procure for the Customer the right to continue using the Services in the manner contemplated by this Agreement; (ii) replace or modify the Services so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to the Customer, without liability to the Customer.
  4. The Company shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 8.3) if the alleged infringement is based on: (i) modification of the Software by anyone other than the Company; or (ii) the Customer’s use of the Services otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by the Company; or (iii) the Customer’s use of the Services after notice of the alleged or actual infringement from the Company or any appropriate authority; or (iv) use or combination of the Services with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred.
9.

Limitation of Liability

  1. This clause 9 sets out the entire financial liability of the Company to the Customer arising under or in connection with this Agreement, including under the Data Processing Addendum and Acceptable Use Policy.
  2. Except as expressly and specifically provided in this Agreement: (i) the Customer assumes sole responsibility for any information or results obtained from use of the Services, and for conclusions drawn from such use; (ii) the Company shall have no liability for any damage caused by errors or omissions in any information or data, or any actions taken by the Company at the Customer’s direction; (iii) 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; (iv) the Company shall not be responsible or liable: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; or (c) for any loss resulting from a Force Majeure Event (as defined below).
  3. Subject to clauses 9.1 and 9.4, the Company’s entire aggregate liability shall not exceed the Fees paid by the Customer to the Company in the 12 months prior to the act that gave rise to the liability.
  4. Nothing in this Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law, including liabilities to data subjects as set out in the Data Processing Addendum.
10.

Miscellaneous

  1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
  2. Either party may assign, transferor sublicense its rights and obligations under this Agreement without consent, provided it notifies the other party within thirty (30) days of such transfer in writing.
  3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
  4. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
  5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever.
  6. Neither party is responsible for failing to fulfil its obligations (other than its payment obligations) under this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent timely performance (“Force Majeure Event”). Any dates or times by which each party is required to render performance under this Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by a Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected party’s performance of its obligations for a continuous period of more than 30 days, the affected party may terminate this Agreement by giving 30 days’ written notice to the other party.
  7. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  8. This Agreement shall be governed by English Law and the courts of England shall have exclusive jurisdiction to govern any dispute.