1.1 Definitions: In these Terms, unless the context indicates otherwise:
Access Codes means the access codes assigned by Customer, the System Administrator and/or Users, enabling Users to access the Site and the Product, including user ID and password(s);
Business Day means any day excluding Saturdays, Sundays and statutory public holidays in the Territory;
Business Hours means 8.30am to 5.30pm on Business Days;
Confidential Information means any information:
Consulting Support means the number of hours' consulting support as set out on the Front Sheet to assist Customer to establish a Use Case;
Currency means the currency specified on the Front Sheet;
Defect means a bug, error or defect in the Product;
Documentation means the instruction manuals, user guides and/or other information made available by Touchpoint Group, Inc. to its customers generally in connection with the use of the Product;
Front Sheet means the front sheet attached to these Licence Terms;
Intellectual Property Rights or IPR means trade marks, rights in domain names, copyright, patents, and all other intellectual property rights, in each case whether registered or unregistered, and all rights or forms of protection having equivalent or similar effect anywhere in the world;
Licence means the licence granted by Touchpoint Group, Inc. to Customer to access and use the Product and Documentation as set out in clause 2;
Licence Fee means the licence fee specified on the Front Sheet;
Licence Term means the period specified as such on the Front Sheet;
PCI Standards means the Payment Card Industry Data Security Standards, as may be modified or updated from time to time during the Term;
Permitted Purpose means access to and use of the Product and Documentation by Customer or its User(s) for Customer's internal business purposes only;
Privacy Laws means any legislation which affects privacy or the collection, storage, handling, use or processing of personal information, including the Personal Information Protection Act and any codes of conduct, administrative decisions, directives or orders made or issued under such legislation;
Product means the proprietary software developed by or on behalf of Touchpoint Group, Inc. and known at the date of this agreement as "Ipiphany Vs 1.0" (including any Updates and/or Upgrades), which is hosted on the Site;
Records means feedback records submitted by, and/or collected from or in respect of, customers of Customer, for processing via the Product;
Services means Consulting Support and the Support Services;
Support Services means:
System Administrator has the meaning given to that term in clause 3.2;
Term has the meaning given to that term in clause 12.1;
Territory means the territory specified on the Front Sheet;
Update means any modification or enhancement of, or improvement to, the Product which is made available by Touchpoint Group, Inc. from time to time during the Term;
Upgrade means a significant release of the Product incorporating a feature or capability not present in the Product in the previous release, which is made available by Touchpoint Group, Inc. to its customers generally from time to time during the Term;
Upgrade Fee has the meaning given to that term in clause 4.2;
Use Case means a specification established for Customer's use of the Product in relation to a specific dataset; and
User means an employee or individual contractor of Customer, who uses the Product under the Licence.
1.2 Interpretation: In this agreement, unless the context indicates otherwise:
Defined Expressions: expressions defined in these Licence Terms have the defined meaning throughout this agreement;
Headings: clause and other headings are for ease of reference only and will not affect the interpretation of this agreement;
Parties: references to any party include that party's successors and permitted assigns;
Plural and Singular: references to the singular include the plural and vice versa; and
Inclusive Expressions: the term includes or including (or any similar expression) is deemed to be followed by the words "without limitation".
1.3 Licence Terms to Prevail: If there is a conflict between a provision in these Terms and a provision in the Front Sheet, the provision in these Terms will prevail to the extent that such conflict exists.
2.1 Provision of Access: Touchpoint Group, Inc. will set up Customer's access to the Site in order to enable Customer to access and use the Product and the Documentation on the basis set out in this agreement.
2.2 Grant and Scope of Licence: Touchpoint Group, Inc. grants to Customer a non-exclusive, non-transferable licence to access and use the Product and the Documentation for the Permitted Purpose during the Term. Except to the extent authorised under applicable law, any other use of the Product or Documentation without Touchpoint Group, Inc.'s prior written consent will be a material breach of this agreement.
2.3 Customer Restrictions: Except as expressly set out in this agreement, Customer will not:
2.4 Customer's Obligations: Customer will:
2.5 Touchpoint Group, Inc.'s Right to Audit: Customer must permit Touchpoint Group, Inc. and/or its nominees, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and computer equipment and systems at those premises, at which the Product or the Documentation is being accessed or used, for the purpose of verifying that Customer is complying with the terms of the Licence.
3.1 Internet Connection: Without limiting clause 2.4(h), Customer will be responsible for maintaining a suitable internet connection to enable it to access and use the Product via the Site.
3.2 System Administrator: Customer will designate a contact and one alternate as the responsible party for communicating with Touchpoint Group, Inc. during the Term (System Administrator). Customer's System Administrator may establish accounts for Users under this agreement.
3.3 Access Codes: Customer acknowledges that, in order to access and use the Product, Users will be required to connect to the Site and log-in using Access Codes. Customer is responsible for ensuring the security and confidentiality of the Access Codes. Customer will be solely responsible for all activities that occur using the Access Codes. Customer will notify Touchpoint Group, Inc. promptly if it becomes aware of any unauthorised use of any Access Codes or any unauthorised access to the Site or the Product.
3.4 Suspension of Access: Touchpoint Group, Inc. may suspend Customer's access to the Site and Product if it becomes aware of any unauthorised access to or use of the Site and/or Product using the Access Codes.
4.1 Update: Touchpoint Group, Inc. may, at its sole discretion, make Updates available during the Term. Any such Updates will be made to the Product in accordance with Touchpoint Group, Inc.'s standard practices and procedures. No additional consideration is payable by Customer for any Update.
4.2 Upgrades: Touchpoint Group, Inc. may, at its sole discretion, make Upgrades available to Customer during the Term. If Touchpoint Group, Inc. makes an Upgrade available, it will notify Customer and will provide details of the applicable fee for that Upgrade (Upgrade Fee). If Customer notifies Touchpoint Group, Inc. that it wishes to receive the Upgrade for that Upgrade Fee, Customer will pay the Upgrade Fee to Touchpoint Group, Inc. and Touchpoint Group, Inc. will make the Upgrade available to Customer.
4.3 Services: In consideration for payment by Customer of the Licence Fee, Touchpoint Group, Inc. will provide the Services to Customer in accordance with the terms of this agreement.
4.4 Defects: Touchpoint Group, Inc. will correct Defects within a reasonable time following notification by Customer. Touchpoint Group, Inc. will have no obligation under this clause if any Defect in the Product results from any use of the Product other than in accordance with the terms of this agreement.
5.1 Touchpoint Group, Inc. IPR: All IPR in the Product, the Documentation and Touchpoint Group, Inc.'s logos and trade marks (together, Touchpoint Group, Inc. IPR) are owned by Touchpoint Group, Inc. and/or its licensors. Customer acknowledges that there is no transfer of title or ownership of the Touchpoint Group, Inc. IPR (or any part of it) to Customer under this agreement.
5.2 Records: All IPR in Records will be retained by Customer and/or its licensors. Customer grants to Touchpoint Group, Inc. a royalty-free, worldwide, non-exclusive licence to use the Records for the purpose of performing Touchpoint Group, Inc.'s obligations under this agreement, and to sub-license this right to Touchpoint Group, Inc.'s third party service provider(s). Customer warrants it owns the Records and/or is entitled to grant the licence in this clause.
6.1 Licence Fees: Customer must pay the Licence Fee to Touchpoint Group, Inc. before its User(s) may access the Product.
6.2 Upgrade Fees: If Customer wishes to receive an Upgrade during the Term, it must pay the Upgrade Fee to Touchpoint Group, Inc. under clause 4.2 before Customer or any of its Users may access and install the Upgrade.
6.3 Additional Users/Records: Customer may, at any time during the Term, increase the maximum number of records processed under this agreement, by notifying Touchpoint Group, Inc. in writing. Before the relevant increase is applied, Customer must pay Touchpoint Group, Inc. the applicable fees specified on the Front Sheet.
6.4 Currency: All monetary amounts in this agreement are stated and are payable in the Currency, unless expressly stated otherwise.
6.5 GST/Sales Tax: All monetary amounts payable under this agreement are exclusive of GST or other applicable sales taxes. Customer must pay GST or other applicable sales taxes to Touchpoint Group, Inc. at the time that it pays the applicable amounts, at the rate and in the manner prescribed by applicable law.
6.6 Time of Invoicing: Touchpoint Group, Inc. will issue a tax invoice to Customer for all amounts payable under this agreement as soon as they become due.
6.7 Due Date for Payment: Except as set out in clauses 6.1 to 6.3, and unless the Front Sheet specifies otherwise, each invoice received by Customer under this agreement, and which complies with this clause 6, will be payable to Touchpoint Group, Inc. without set off or deduction on or before the later of:
6.8 Default Interest for Late Payment: Customer must pay Touchpoint Group, Inc. interest at the default interest rate of 10% per annum (or, if lower, the maximum rate permitted by applicable law) on any overdue amounts owed by Customer under this agreement, calculated daily from the due date until the actual day of payment. Customer will pay to Touchpoint Group, Inc. all reasonable costs (including collection costs) that Touchpoint Group, Inc. incurs in attempting to recover any such overdue amounts.
6.9 Suspension of Access: In addition to its rights in clause 6.7, Touchpoint Group, Inc. may suspend Customer's access to the Product if Customer fails to pay any amount by the due date for payment.
7.1 Warranties: Touchpoint Group, Inc. warrants that:
7.2 Remedy: To the fullest extent permitted by applicable law, Customer's sole and exclusive remedy for breach of a warranty in clause 7.1(a) or (b) is (at Touchpoint Group, Inc.'s option) the re-supply of the Product or re-performance of the relevant services (as applicable) or refund or waiver of Licence Fees for the Term. Touchpoint Group, Inc.'s obligation under this clause is subject to Customer's compliance with the terms of this agreement.
7.3 No Reliance: Customer acknowledges that:
7.4 All Other Warranties Excluded: To the fullest extent permitted by applicable law, and except as expressly set out in this agreement, Touchpoint Group, Inc. excludes all warranties, conditions, terms, representations and undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose. Touchpoint Group, Inc. does not warrant that the Product will meet any of Customer's requirements, that the Product will be uninterrupted or free of Defects, or that all Defects will be corrected.
Touchpoint Group, Inc. Indemnity: Touchpoint Group, Inc. will indemnify Customer against any loss, damage or costs finally awarded against Customer by a court in respect of a successful third party claim against Customer that the Product infringes any patent or copyright of that third party,provided that:
8.1 No Unauthorised Use or Breach: the claim has not, in part or full, arisen from unauthorised use of the Product by Customer or by its breach of this agreement;
8.2 Notification: Customer notifies Touchpoint Group, Inc. in writing within 5 Business Days of the claim arising;
8.3 Sole Control of Defence: Customer gives Touchpoint Group, Inc. sole control of the defence of the claim and all related settlement negotiations; and
8.4 Assistance: Customer gives Touchpoint Group, Inc. all assistance, information and authority necessary to defend and/or settle the claim (and any reasonable out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by Touchpoint Group, Inc.).
9.1 Limits: The maximum liability of either party to the other party for any incident or series of related incidents under or in connection with this agreement (whether in contract, tort or otherwise) will be the greater of:
9.2 No Liability: Subject to clause 9.3, Touchpoint Group, Inc. will not be liable to Customer whether in contract, tort (including negligence) or otherwise in respect of any:
9.3 No Exclusion or Limit: The limitations of liability in clauses 9.1 and 9.2 will not apply to:
10.1 Privacy: Each party will comply with all Privacy Laws relating to the processing of personal information under or in connection with this agreement.
10.2 Security: Touchpoint Group, Inc. will:
10.3 Exporting Personal Information: Touchpoint Group, Inc. will not transfer any personal information referred to in clause 10.1 to any country without Customer's prior written approval.
10.4 Consents: Customer warrants that it has obtained all necessary consents from third parties to enable Touchpoint Group, Inc. to store, transmit, access or otherwise process any Records as may be necessary to enable Touchpoint Group, Inc. to carry out its obligations under this agreement.
Parties to Maintain Confidentiality: Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
11.1 Disclose: disclose or permit to be disclosed to any person; or
11.2 Use: use for itself to the detriment of the other party, any Confidential Information except:
11.3 Law: as required by law;
11.4 Public Knowledge: as is already or becomes public knowledge, otherwise than:
11.5 Authorised: as authorised in writing by the other party; or
11.6 Reasonably Required: to the extent reasonably required in order to give effect to this agreement.
12.1 Term of Licence: This agreement will commence on the Commencement Date and, unless terminated earlier, will continue for the Licence Term (Term).
12.2 Termination Without Cause: Customer may terminate this agreement on or at any time after the Commencement Term by giving  days' written notice to Touchpoint Group, Inc.
12.3 Termination for Cause: Either party (the First Party) may terminate this agreement at any time and with immediate effect by written notice to the other party (the Second Party) if the Second Party:
12.4 Consequences of Termination: On expiry or termination of this agreement:
13.1 Method of Delivery: Any notice or other communication to be given under this agreement will be in writing and delivered to the recipient at its address set out in the Front Sheet. if sent by email, delivery will be deemed to have occurred when the recipient acknowledges receipt (whether by way of an automated message or otherwise).
13.2 Time of Delivery: Any notice transmitted by email or delivered after 5.00 pm on a Business Day, or at any time on a non Business Day, will be deemed received at 9.00 am on the next Business Day (being, in each case, the time of day at the intended place of receipt of that notice).
14.1 Force Majeure: Neither party (Affected Party) will be liable for any act, omission or failure by it under this agreement if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of the Affected Party.
14.2 Sub-Contracting: Touchpoint Group, Inc. may appoint subcontractors to perform any of its obligations under this agreement. Touchpoint Group, Inc. will remain liable to Customer for all acts or omissions of any subcontractor appointed by Touchpoint Group, Inc..
14.3 Amendment: No amendment to this agreement will be valid unless recorded in writing and signed by a duly authorised representative of each party.
14.4 Assignment: Customer may not transfer, sub-licence or assign any of its rights or obligations under this agreement to any other person without Touchpoint Group, Inc.'s prior written consent.
14.5 Entire Agreement: These Terms and the Front Sheet, and any related non-disclosure agreement between the parties, record the entire agreement between the parties relating to all matters dealt with in this agreement and supersede all previous arrangements, whether written, oral or both, relating to such matters.
14.6 Remedies: The rights, powers and remedies provided in this agreement are cumulative and are in addition to any rights, powers or remedies provided by applicable law.
14.7 Waiver: No waiver of any breach, or failure to enforce any provision, of this agreement at any time by either party will in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this agreement.
14.8 Severability: If any provision of this agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this agreement, all of which will remain in full force and effect to the extent permitted by applicable law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
14.9 Governing Law and Jurisdiction: This agreement is governed by the laws of State of Illinois. The parties submit to the non-exclusive jurisdiction of the State of Illinois courts in respect of all matters relating to this agreement.