1. Definitions and interpretation
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:
- relating to the Product, the Services or the terms or existence of this agreement;
- disclosed by either party to the other party on the express basis that such information is confidential; or
- which might reasonably be expected by either party to be confidential in nature; and
- in relation to Customer, includes the Records;
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;
Site means the site hosted and maintained on behalf of Touchpoint Group, Inc. at www.ipipihany.io, www.ipiphany.ai (or other replacement URL notified by Touchpoint Group, Inc. from time to time);
Support Services means:
- Product-related assistance provided by Touchpoint Group, Inc. by [telephone or email] during Business Hours; and
- the provision of Updates under clause 4.1;
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. Access and use
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:
- Permit Access: permit any third party to access or use the Product or Documentation or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
- Modify etc: adapt, modify, copy, translate or create derivative works from the Product or Documentation, nor permit the Product or any part of it to be combined with, or become incorporated in, any other software;
- Create Links: create internet 'links' to the Product;
- Decompile/Reverse Engineer: attempt to discover or gain access to the source code of the Product or de-compile or reverse engineer the whole or any part of the Product;
- Interfere with the Product: interfere with the proper working of the Product and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Product or Site or any associated computer system, server or internet-connected device;
- Circumvent Restrictions: employ any hardware, software, device or technique to pool connections or reduce the number of users that directly access or use the Product or Site in order to circumvent any restrictions on the scope of authorised use in this agreement; or
- Remove Proprietary Notices: obscure, amend or remove any proprietary notice on, or visible during the operation or use of, the Product or Documentation.
2.4 Customer's Obligations: Customer will:
- Keep Product Secure: comply with the access and control requirements in clause 3;
- Control and Supervise Use: control and supervise access and use of the Product, and ensure that the Product is only accessed and used by Users in accordance with this agreement;
- Use by Others: ensure that the number of Users accessing and using the Product does not exceed the maximum on the Front Sheet;
- Records: only process up to the maximum number of Records specified on the Front Sheet, unless the maximum has been increased under clause 6.3;
- Comply with Instructions: comply with Touchpoint Group, Inc.'s instructions in relation to access to and use of the Product;
- Acceptable Use Policy: comply with the terms of any acceptable use or similar policy notified in writing by Touchpoint Group, Inc.;
- Comply with Laws: comply with all applicable laws relating to Customer's use of the Product;
- Obtain Equipment etc: be responsible for obtaining and maintaining all equipment, software and systems needed to enable Customer to receive and use the Product;
- Provision of Assistance etc: provide all assistance and information reasonably required by Touchpoint Group, Inc. in order to perform its obligations under this agreement; and
- Notify of Infringement: promptly notify Touchpoint Group, Inc. on becoming aware of any person infringing Touchpoint Group, Inc.'s IPR in the Product and/or Documentation.
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. Access control
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. Updates, upgrades and support
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. Intellectual Property Rights
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:
- the 20th day of the month following the month to which that invoice relates; and
- the 15th Business Day after receipt by Customer of that invoice.
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:
- the Product will, under normal operating conditions, substantially conform to the functionality described in the Documentation;
- it will provide the Services with reasonable skill and care and using good industry practice; and
- Touchpoint Group, Inc. has the right and authority to grant the Licence to Customer in accordance with this agreement.
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:
- it must satisfy itself as to the adequacy, appropriateness and compatibility of the Product for its requirements; and
- it has not relied on any statements or representations on the part of Touchpoint Group, Inc. as to the performance or functionality of the Product, except as expressly recorded in this agreement.
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.
8. IP indemnity
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:
- the total amounts paid or payable under this agreement in the 3 month period immediately preceding the month in which the relevant incident (or last in a series of related incidents giving rise to the claim) occurred; or
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:
- indirect, consequential or special loss, damage, cost or expense suffered or incurred by Customer as a direct or indirect result of a breach by Touchpoint Group, Inc. of any of its obligations under this agreement;
- loss of data, lost profits, loss of revenue, loss of goodwill, loss of business (in each case whether such loss is direct or indirect); or
- loss, damage, cost or expense suffered or incurred by Customer, to the extent to which this results from any act or omission by Customer.
9.3 No Exclusion or Limit: The limitations of liability in clauses 9.1 and 9.2 will not apply to:
- IP/Confidentiality/Privacy: any Losses arising as a result of a breach by either party of clauses 5, 10 and/or 11; or
- Fees: Customer's obligation to pay the Licence Fee and other amounts payable under this agreement.
10. Privacy and security
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:
- Maintain Safeguards: establish and maintain adequate safeguards in accordance with good industry practice to protect the Records against any unauthorised access, destruction, loss or alteration; and
- PCI Standards: comply with the PCI Standards.
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:
- as a result of a breach, by the party disclosing, of any provision of this agreement; or
- through an unauthorised disclosure by a third party;
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. Term and termination
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:
- Material Breach: is in material breach of any of its obligations under this agreement, and has failed to remedy the breach within 30 days of receiving written notice from the First Party to remedy the breach; or
- Insolvency Event: goes into liquidation, has a receiver appointed or is unable to pay its debts as they fall due.
12.4 Consequences of Termination: On expiry or termination of this agreement:
- Customer to Cease Using Product: Customer must cease to access, and discontinue all use of, the Product;
- Documentation: Customer must destroy any copies of the Documentation in its possession or control;
- Outstanding Fees: Customer will pay any outstanding monetary amounts payable under this agreement within 7 days of expiry or termination;
- Records: Touchpoint Group, Inc. will: (i) provide reasonable assistance to facilitate the orderly transfer of the Records then under Touchpoint Group, Inc.'s possession or control to Customer in a manner and in a format determined by Touchpoint Group, Inc. acting reasonably; and (ii) retain the Records for a period of 12 months following expiry or termination;
- Licences: the Licences will terminate automatically;
- Rights and Remedies: expiry or termination will be without prejudice to either party's rights and remedies in respect of any breach of this agreement by the other party, where the breach occurred before expiry or termination; and
- Survival: the provisions of clauses 5, 8, 9, 11 and this clause 12.4, together with those other provisions of this agreement that expressly or by implication are intended to come into force or continue in force on or after its expiry or termination, will remain in full force and effect.
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.