1.2 If you are an employee (or contractor) of the Client entering into this Agreement on behalf of the Client, you represent and warrant that (i) you have full legal authority to bind the Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the Client to this Agreement.
1.3 The Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Pointerpro.
1.4 These Terms and Conditions equally apply to Trial Users, it being understood that Trial Users will have a (limited) Trial Account. The scope of the Trial Account shall be determined by Pointerpro in its sole discretion. Trial Users will have all rights and obligations of the Clients during the Trial Term, unless expressly stated otherwise herein or if the context requires otherwise. For the avoidance of doubt, any reference to “Client” shall imply a reference to “Trial User” for the purpose of a Trial Account.
2.1 In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
“Add-On” means an addition of a certain Feature or Functionality that is not included in the applicable Subscription Plan. Pointerpro reserves the right at all times to determine which specific Feature and Functionality it may separately offer. Upon request, Pointerpro shall inform the Client of the available Add-Ons.
“Agreement” means the entire contractual relation between Pointerpro and the Client, including these Terms and Conditions, its Annexes, any Commercial Offer and any Statement of Work (as applicable).
“Authorized User” means a physical person in Client’s organisation (employees and contractors) who is granted access to the Online Software Service by the Client for the purposes of using the Online Software Service by feeding it with content (such as, without limitation, Client Data) in accordance with clause 7 in order to use the Online Software Service in accordance with clause 3. The amount of Authorized Users is strictly limited to the amount corresponding to the applicable Subscription Plan as identified in the Commercial Offer. By default only one Authorized User shall be included in a subscription, unless the applicable Subscription Plan allows for multiple Authorized Users.
“Business Day” means a normal working day of Pointerpro from 8.30 a.m. to 5.30 p.m. CET, from Monday to Friday, excluding Belgian public holidays.
“Client Data” means all data proprietary to, or held by the Client which is inputted or uploaded by the Client, the Authorized Users or the End Users when using the Online Software Service and as processed or stored by Pointerpro as a result of the Client, the Authorized User or the End User using the Online Software Service. Client Data shall also include output data resulting from the processing by the Online Software Service of the entered data by the Client, the Authorized User or the End User.
“Client Personal Data” means the personal data proprietary to or held by the Client, which is inputted or uploaded by the Client, the Authorized Users or the End Users when using the Online Software Service and as processed or stored by Pointerpro as a result of the Client, the Authorized User or the End User using the Online Software Service.
“Client” means the legal entity entering into contractual relations with Pointerpro, as identified in the Commercial Offer.
“Commercial Offer” means the applicable Subscription Plan and (as applicable) the nature, the number of, and other specifics of the Online Software Services subscribed by the Client (and/or any additional Services), which forms an integral part of the Agreement. The Commercial Offer can be agreed via click through or via email (as applicable).
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including this Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs.
“Effective Date” means the effective date as set forth in the Commercial Offer.
“End User” means any individual to whom the Online Software Service will be made available by the Client and who will be able to use the Online Software Service as an end user.
“Features or Functionalities” means the features or functionalities available in the Online Software Service as included in the applicable Subscription Plan such as (without limitation) number of monthly responses, number of Authorized Users, possibility to white-label and any other variable specific to a certain Subscription Plan. Pointerpro reserves the right to add or evolve Features or Functionalities at any time.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil its obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. The following events shall in any case be considered as Force Majeure (without limitation): war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, internet failure, hosting failure, floods, explosion, weather conditions, strike or social action, pandemics and all other circumstances generally qualified as force majeure.
“Hosting Partner” means Amazon Web Services EMEA (or such other provider of hosting services Pointerpro might contract in the future).
“Initial Term” has the meaning given to it in clause 14.
“Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
“Maintenance Services” are the maintenance and support services related to the Online Software Services
“Online Software Services” means the cloud services as provided by Pointerpro for creating a quiz or survey
“Parties” means the Client (or the Trial User, as applicable) and Pointerpro.
“Party” means the Client, the Trial User or Pointerpro .
“Renewal Term” has the meaning given to it in clause 14.
“Services Fee” means the services fee specified in the Commercial Offer or the Statement of Work (as applicable) in respect of the Services and the Online Software Services.
“Services” mean additional development, implementation, consultancy and integration services (including, but not limited to customisations) or such other services in relation to the Online Software Service to be delivered by Pointerpro to the Client as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work.
“Statement of Work” means a written document that Parties may enter into from time to time describing the Services that Pointerpro is to provide in connection with the Online Software Service. In case of limited or minor arrangements, the description of such Services can be agreed via email.
“Subscription Fee” means the amounts payable by the Client to gain access to and use the Online Software Service and to receive Maintenance Services as specified in the Commercial Offer.
“Subscription Plan” means the commercial feature-based model pursuant to which the Client purchases the Online Software Service. Each Subscription Plan comes with a different Subscription Fee and includes different Features and Functionalities.
“Pointerpro” means the Online Software Service created and owned by Objective7 BV, a company organized and existing under the laws of Belgium having its registered office at Prins Boudewijnlaan 218A, 2650 Edegem, (Belgium) and registered with company number BE 0845.741.317.
“Term” means the Initial Term together with any Renewal Term.
“Terms and Conditions” means the present general terms and conditions applicable to all Commercial Offers and Statements of Work agreed upon between Pointerpro and the Client, unless expressly stipulated otherwise in writing.
“Trial Account” means an account to which a Trial User subscribes free of charge, but which is only available during the Trial Term and for limited use of the Online Software Service only (as set out in this Agreement).
“Trial Term” means the limited term of seven (7) or fourteen (14) days (as applicable and as indicated by Pointerpro) to use the Online Software Service as part of a Trial Account.
“Trial User” means a legal entity who is not a Client, has not been a Trial User previously and subscribes free of charge to a Trial Account subject to the terms of this Agreement.
3.1 Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees, Pointerpro grants to Client a personal, restricted, non-exclusive, non-transferable and non-assignable license, without the right to sublicense, to use the Online Software Service through its Authorized Users for its internal business purposes and to make the Online Software Service available to the End Users, both in accordance with this Agreement for the Term of the Agreement. If applicable pursuant the relevant Subscription Plan, the foregoing shall also include the right to make a white-labelled version of the Online Software Service available to the End Users.
3.2 With respect to Trial Accounts, the Trial User is granted a limited, revocable, non-exclusive, non-transferable right to use the Online Software Service during the Trial Term and subject to the Trial User’s continued compliance with this Agreement, it being understood that Trial Users are not charged any Subscription Fees during the Trial Term. The scope of the Trial User’s right to use the Online Software Service shall be determined by Pointerpro in its sole discretion as shall be limited to the Features and Functionalities made available by Pointerpro in the Online Software Service. Pointerpro shall at all times be entitled to change the scope of the Trial User’s rights.
3.3 The extent of the licenses granted under this Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under this Agreement. Pointerpro reserves any right not expressly granted to the Client hereunder.
3.4 The Client shall comply with all applicable laws relating to the use of the Online Software Service. The Client acknowledges that the Online Software Service may include encryption and may, accordingly, be subject to export or other restrictions.
3.5 Unless to the extent permitted by this Agreement or applicable law, the Client shall not directly or indirectly (including without limitation through the actions of any of its Authorized Users, End Users, agents, contractors, employees, representatives, subcontractors, or in general, any third party) (i) arrange or create derivative works based on the Online Software Service without Pointerpro’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Online Software Service, or use the Online Software Service on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Online Software Service or any part of them except as expressly provided in this Agreement; (iv) remove or alter any copyright or other proprietary notice on any of the Online Software Service.
3.6 The Client acknowledges that the Online Software Services may contain advice and recommendations. Unless explicitly agreed otherwise, the Client bears full responsibility for the use and/or implementation of such advice and recommendations.
4.1 The Online Software Service is provided pursuant to different Subscription Plans as communicated by Pointerpro to the Client. Each Subscription Plan comes with access to different Features and Functionalities. The Client shall be entitled to use such Features and Functionalities as set out in the applicable Subscription Plan (which shall be specified in the Commercial Offer) or as additionally ordered in accordance with clause 2 below.
4.2 If the Client wishes to make use of additional Features and Functionalities other than included in the relevant Subscription Plan, it may at any time request the purchase of Add-Ons to its Subscription Plan for which the Parties shall sign (or subscribe to) a new Commercial Offer. Upon request, Pointerpro shall inform the Client of which Add-Ons are available and the applicable costs.
4.3 The Client acknowledges and agrees that certain data or output resulting from the use of the Online Software Service (such as, but not limited to End User responses) in excess of the limits foreseen in the applicable Subscription Plan, shall only be available to the Client if the applicable Subscription Plan is upgraded appropriately.
Pointerpro has the right to monitor and inspect the usage of the Online Software Service by the Client (including but not limited to monitoring the use of the applicable Features and Functionalities and Add-Ons) to ensure that the Subscription Fees to be paid by the Client are correct. If such inspection or monitoring shows that the Client has underpaid the amount of the Subscription Fees due to Pointerpro, without prejudice to any other rights and remedies available to Pointerpro, the Client shall promptly pay the amount of such underpayment to Pointerpro together with any applicable late payment interest.
6.1 The Client may request Pointerpro to perform certain Services and Pointerpro may in its sole discretion agree to provide such Services. In such case, the Parties shall enter into a Commercial Offer or Statement of Work (as applicable depending on the scope of the Services) detailing the scope of the Services to be provided and the applicable Services Fees which may be on a time and material basis or fixed price basis as determined by the Parties. Any such Services shall be provided in accordance with this Agreement, expressly including the applicable Statement of Work.
6.2 Pointerpro shall provide any Services pursuant to this Agreement in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of this Agreement without which the Parties would not have concluded it.
6.3 During the execution of the Services, Pointerpro reserves the right to reassign or remove any of its resources in its sole discretion.
6.4 Pointerpro undertakes to provide the Services in accordance with generally accepted industry standards and shall exercise reasonable care and skill in doing so.
6.5 The Client agrees that in order for Pointerpro to effectively perform the Services in a proper, timely and efficient manner, the Client must cooperate with Pointerpro in good faith.
6.6 The Client acknowledges that the Services may contain advice and recommendations. Unless explicitly agreed otherwise, the Client bears full responsibility for the use and/or implementation of such advice and recommendations.
7.1 The Client acknowledges that the Online Software Service consists of certain algorithms and artificial intelligence and that for a proper and seamless functioning of the Online Software Service, the Client is responsible to feed the Online Software Service with sufficient Client Data.
7.2 The Client shall solely be liable and responsible for the accuracy and correctness of Client Data inputted by the Authorized Users or the End Users (as applicable). Pointerpro shall not be liable for damages or liability resulting from incorrect Client Data inputted in the Online Software Service.
7.3 All Client Data shall remain property of the Client. The Client hereby grants Pointerpro a non-exclusive, royalty-free, worldwide, non-revocable, sublicensable, transferable, perpetual (with as a minimum the duration of the Intellectual Property Rights) license to use, copy, store, modify, transmit and display such Client Data (including any other content and information provided, transmitted or uploaded through the Online Software Services) for the performance of its obligations under this Agreement and to improve the functioning and provision of the Online Software Service.
7.4 The Client warrants to Pointerpro that the Client Data shall not infringe the Intellectual Property Rights or other legal rights of any third party, and shall not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.5 The Client acknowledges and agrees that it shall solely be responsible for the Client Data that is distributed or accessible through the Online Software Service. Pointerpro shall in no event be responsible or held liable for any such Client Data. In particular, the Client represents and warrants that no Client Data is distributed through the Online Software Service that in any manner in Pointerpro’s sole discretion: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, invasive of others privacy, hateful racially, ethnically or otherwise objectionable; (iii) adversely or negatively affects or reflects Pointerpro’s name, reputation or goodwill.
7.6 The Client acknowledges and agrees that any violation by the Client of the provision of this clause 7 shall entitle Pointerpro, at its sole option (i) to immediately terminate (or alternatively, at Pointerpro’s option, refuse or suspend any access to and use of the Online Software Service) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to Pointerpro pursuant to this Agreement or under applicable law; and/or (ii) immediately remove or block the concerning Client Data.
8.1 The Client acknowledges and agrees that in order to use the Online Software Service to the fullest extent, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments.
8.2 The Online Software Service will be hosted by Pointerpro in the datacentres of the Hosting Partner. The Client represents and warrants that it accepts the applicable terms and conditions of the Hosting Partner that will be made available by Pointerpro or the Hosting Provider (as applicable) to the Client. The current version of the applicable terms and conditions can be found on https://aws.amazon.com/service-terms/. The Client acknowledges and agrees that the Hosting Partner retains the right to unilaterally change any such terms and conditions (including the hyperlink to such terms and conditions). Unless expressly otherwise stated in this Agreement, the hosting services shall solely be governed by the applicable Hosting Partner terms and conditions and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by Pointerpro in respect of the Online Software Service shall not apply in respect of such hosting services (except as expressly otherwise agreed to in writing by Pointerpro).
8.3 Pointerpro does not give any direct, indirect, explicit or implicit, warranty whatsoever to provide un-interrupted availability of the Online Software Service, however, Pointerpro shall use its best efforts to provide a continued availability of the Online Software Service. In no event shall Pointerpro be responsible for any down-time that is caused by the Hosting Provider.
8.4 The Client acknowledges that the hosting services and the Online Software Services might not be available during periods of planned maintenance by Pointerpro or the Hosting Provider. If reasonably feasible, any planned maintenance will be performed outside of Business Days and Pointerpro will inform the Client as soon as reasonable possible of any planned maintenance.
8.5 Pointerpro and the Hosting Provider reserve the right to conduct any unplanned maintenance at any time if necessary for security reasons or other reasons requiring immediate maintenance. Pointerpro or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the Online Software Service.
Pointerpro is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Online Software Service and the Services (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Online Software Service or the Services). Except for the limited license granted pursuant to clause 3, no other rights in respect of the Pointerpro Intellectual Property Rights shall be granted or transferred to the Client in connection with this Agreement. Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Online Software Services or Services to the Client or any third party. The Client shall not in any way acquire any title, rights of ownership, copyrights, Intellectual Property Rights or other proprietary rights of whatever nature in the Online Software Services or Services. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Online Software Services, or visible during its operation or on media.
10.1 Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose it to any third party, other than its employees, advisors, agents or consultants where such disclosure is necessary for the performance of this Agreement and provided that they are bound by confidentiality obligations at least a strict as those provided herein, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed the Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
10.2 The Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. The Parties in particular agree that they (i) shall not copy or otherwise exploit any component of the Confidential Information other than as provided herein, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of the Agreement) contain a permanently legible reproduction of the other Party’s copyright notice and a confidentiality notice; (iii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
10.3 The provisions of this clause shall not apply to any Confidential Information which (i) is published or comes into the public domain other than by a breach of the Agreement; (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a third party that is not bound by a duty of confidentiality; or (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
10.4 If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
10.5 The obligations set out in this clause 10 shall enter into force as from the start of negotiations between the Parties and shall survive during five (5) years after the termination or expiration of the Agreement. These confidentiality obligations in the Agreement replace any prior non-disclosure agreement signed between the Parties.
11.1 The Parties shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (“GDPR”) with respect to the processing of personal data (as defined in the GDPR).
11.2 In particular, the Client represents and warrants to Pointerpro that it has the legal right to disclose any personal data that is available to Pointerpro under or in connection with this Agreement (including, but not limited to, any personal data that might by disclosed by the Authorized Users or End Users while using the Online Software Service) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Pointerpro in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Pointerpro (as applicable) in accordance with applicable law.
11.3 Pointerpro shall use Client Personal Data only for the execution of this Agreement and in accordance with the data processing agreement included in Annex 1 to these Terms and Conditions.
The Client shall indemnify, defend and hold Pointerpro harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by Pointerpro (including its agents, contractors, directors, employees or representatives) arising out of Client’s infringement of any third party’s Intellectual Property Rights or any other rights of such third party.
13.1 The Client shall have the option to pay the Subscription Fees either (i) annually or (ii) monthly as identified in the applicable Commercial Offer or Subscription Plan.
13.2 Payment may be processed by either (i) credit card or (ii) by wire transfer to Pointerpro’s bank account number as indicated in the Commercial Offer and the applicable invoice. The payment option chosen by the Client shall be identified in the applicable Commercial Offer.
13.3 In the event of an annual upfront payment via credit card, the Client shall pay the first annual Subscription Fee via credit card on the Effective Date and the annual Subscription Fee shall thereafter automatically be debited from the Client’s credit card on each anniversary date of the Effective Date. Promptly after each payment via credit card, Pointerpro shall issue the corresponding invoice.
13.4 In the event of a monthly upfront payment via credit card, the Client shall pay the first monthly Subscription Fee via credit card on the Effective Date and shall thereafter be automatically be debited from the Client’s credit card each month. Promptly after each payment via credit card, Pointerpro shall issue a corresponding invoice.
13.5 In the event of a payment by wire transfer, the Client shall pay the Subscription Fees within thirty (30) days of the date of the invoice. Any disputes must be notified to Pointerpro within fifteen (15) days after receipt of the invoice, failure of which will result in the invoice to be deemed accepted.
13.6 If no upfront payment pursuant to clauses 3 and 13.4 can be processed due to whatsoever reason, Pointerpro reserves the right to suspend any use of and access to the Online Software Service by the Client until payment is successfully processed.
13.7 The Client expressly acknowledges and agrees that any upfront payments made pursuant to clause 3 and 13.4 are final and non-refundable. If the Agreement is terminated early, the Client shall not be entitled to a refund whatsoever.
13.8 In the event Pointerpro has been requested to perform certain Services, the applicable Services Fees shall be invoiced separately and the Client shall pay all applicable Services Fees within thirty (30) days after the invoice. Any disputes must be notified to Pointerpro within fifteen (15) days after receipt of the invoice, failure of which will result in the invoice to be deemed accepted.
13.9 Invoices shall be sent in PDF-format to the Client’s email address, specified in the Commercial Offer, or as a physical copy to the Client’s address if specifically requested by the Client in writing. All payments under this Agreement shall be made in the currency agreed in the relevant Commercial Offer and are exclusive costs and expenses which may be charged separately by Pointerpro (if applicable).
13.10 All amounts payable to Pointerpro under the Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay Pointerpro such additional amounts as are necessary in order that the net amounts received by Pointerpro, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
13.11 Any amounts of undisputed invoices that have not been paid within thirty (30) days after the Invoice Date shall automatically and without notice be subject to a late payment interest equal to eight percent (8%) per month or the maximum extent permitted by applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by Pointerpro. In addition, the Client shall pay all costs incurred by Pointerpro as a result of the (extra)judicial enforcement of the Client’s payment obligation under this clause. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, Pointerpro shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
13.12 After the Initial Term and each Renewal Term thereafter, Pointerpro reserves the right to change the Subscription Fees in its sole discretion. Pointerpro shall inform the Client of such price adjustment forty-five (45) days prior to the start of the next Renewal Term.
14.1 The Agreement shall commence on the Effective Date and shall continue for an initial term as specified in the Commercial Offer (the “Initial Term”). After the Initial Term the Agreement shall automatically and tacitly renew for consecutive periods of one (1) year or one (1) quarter, as applicable (each a “Renewal Term”), unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one (1) month before the end of the Initial Term or the then current term or unless terminated earlier in accordance with this clause 14.
14.2 Upon expiry of the Trial Term, the Trial Account shall automatically be converted into the applicable Subscription Plan, unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one (1) day before the end of the Trial Term. In the event of a conversion, the Trial User shall become a Client and thus shall become liable to pay the applicable Subscription Fee and to comply with all terms and conditions of this Agreement. Notwithstanding the automatic conversion, the Parties may agree on an appropriate Subscription Plan.
14.3 The Client may terminate the Agreement at any time without cause upon written notice (or via click-through), provided, however, that the Agreement remains into force until the end of the Initial Term or the then-current Renewal Term and that the Client shall pay the remaining amount of the Subscription Fees corresponding to the full period of the Initial Term or the then-current Renewal Term. For the avoidance of doubt, in case of early termination pursuant to this clause 3, the Client shall not be entitled to a pro-rata refund of any fees that have been paid upfront.
14.4 Either Party may immediately terminate (or Pointerpro may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or (iii) the other Party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.
14.5 Without prejudice to any other rights and remedies available to Pointerpro, the Client acknowledges and agrees that Pointerpro shall be entitled to immediately terminate the Agreement, without any formalities being required, in case the Client breaches or violates (i) the terms and conditions of the Hosting Partner or the applicable third party software; or (ii) Pointerpro’s Intellectual Property Rights (expressly including the license grant pursuant to clause 3) or Confidential Information.
15.1 Upon termination of the Agreement for whatsoever reason: (i) the Client shall promptly pay to Pointerpro all amounts due and payable under this Agreement up to and including the date of termination; (ii) all licenses granted to the Client shall automatically terminate; (iii) except as required to comply with any applicable legal or accounting record keeping requirement and upon the other Party’s written request, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
16.1 Pointerpro shall provide the Online Software Service and the Services with the expertise and independence, skill, care and diligence that can be reasonably expected from a qualified service provider. The Client acknowledges and agrees that the Online Software Services and Services are provided “as is”.
16.2 Except for the foregoing warranty and to the maximum extent permitted by applicable law, Pointerpro does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Online Software Services and Services) and Pointerpro disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
17.1 Subject to the maximum extent permitted under applicable law, Pointerpro’s liability under the Agreement shall, per event (or series of connected events) and per contract year, not exceed an amount equal to the Subscription Fees paid during such contract year.
17.2 The Trial User acknowledges and agrees that, subject to the maximum extent permitted under applicable law, Pointerpro has no liability whatsoever under this Agreement in respect of Trial Accounts shall as Trial Users do not pay any fees.
17.3 Under no circumstances shall Pointerpro be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
17.4 Pointerpro shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the Online Software Service or for damages caused by the wrongful (or out of scope) use of the Online Software Service.
For the Term of this Agreement and for a period of two (2) years thereafter, the Client shall not recruit, nor employ any agents, contractors, employees or representatives (directly or indirectly) employed or contracted by Pointerpro and introduced in connection with the performance of the Agreement, unless expressly agreed to in writing by Pointerpro. In case of breach of this clause by the Client, the Client shall pay to Pointerpro an amount equal to six (6) times the monthly gross income of the agent, contractor, employee or representative concerned, without prejudice to Pointerpro’s right to initiate any legal proceedings and/or to claim additional damages, if Pointerpro can establish that Pointerpro has incurred losses exceeding this amount.
19.1 Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement.
19.2 Severability – If any provision of the Agreement is held to be unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
19.3 Waiver – The terms and conditions of the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
19.4 Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
19.5 Assignment – Pointerpro may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client shall not assign or otherwise transfer any of its right of obligations under the Agreement without Pointerpro’s prior written consent.
19.6 Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. the Party must, within reasonable time, provide the other Party with evidence of the existing Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its reasonable efforts to keep the consequences to a minimum. In the event of a failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.
19.7 Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out in the Commercial Offer. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Pointerpro to the Client within five (5) Business Days. In case no confirmation of receipt was given by Pointerpro within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Commercial Offer or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (2) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (3) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
19.8 Interpretation – In the Agreement (unless the context shall otherwise require or permit): (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
19.9 Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail on the latter, unless expressly agreed otherwise between the Parties in writing: (i) the applicable Commercial Offer or applicable Statement of Work, (ii) the Annexes, (iii) these Terms and Conditions.
19.10 Relationship of the Parties – The relationship between Pointerpro and Client is that of independent contractors.
19.11 Publicity – Pointerpro shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name), as well as any survey of the Client (if publicly available), for client references on Pointerpro’s website, social media announcements and sales presentations.
19.12 Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonable good faith efforts to amicably settle any disputes that might arise during the execution of this agreement.
19.13 Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Antwerp (Antwerp division). The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.
1.1 This Data Processor Agreement (the “DPA”) is concluded between Objective 7 BV, with registered office at Prins Boudewijnlaan 218A 2650 Edegem, Belgium, and registered in the Crossroad Bank for Enterprises with enterprise number 0845.741.317 (hereinafter referred to as “Pointerpro”) and the Client (as identified in the relevant Commercial Offer) pursuant to the Agreement between Pointerpro and the Client.
1.2 This DPA forms an integral part of the Agreement between the Parties. In the performance of the Agreement, Pointerpro will receive and process Personal Data for the benefit and on behalf of the Client and in accordance with the instructions and purpose defined by the Client. Parties agree that Pointerpro is the Processor and the Client is the Controller in respect of such Processing of Personal Data related to the Agreement. Parties acknowledge that specific legislation applies to the Processing of Personal Data in relation the Agreement. Such legislation includes, among others, the GDPR (including implementing laws, if applicable) and the Belgian Privacy Act.
1.3 By means of this Data Processor Agreement, Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement. This Data Processor Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection.
2.1 Capitalized terms used in this DPA shall have the meaning as set out in this section. Terms also defined in the GDPR or any other applicable legislation shall be interpreted in accordance with the meaning given to them in the GDPR or such applicable legislation. Capitalized terms not defined in this DPA shall have the meaning given to them in the Terms and Conditions.
Belgian Privacy Act means the Belgian act of July 30th, 2018 regarding the protection of natural persons in respect of processing of personal data.
Controller or Data Controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e. the Client).
(Personal) Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Data Processing Agreement or DPA means this document, setting out the conditions applicable to the Processing of Data in connection with the Agreement.
Data Processing Details means Appendix 1 to this DPA including information such as the purpose, object and nature of Processing and the kind of Personal Data being processed, also including the instructions given by the Controller.
Data Subject a natural person who is identified or identifiable by the Personal Data. an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
GDPR Regulation (EU) 2016/679 of the European Parliament and of Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Personal Data means any information relating to an identified or identifiable natural person.
Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Processor means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (i.e. Pointerpro).
Sub-processor means a third party subcontractor that is involved in the Processing of Personal Data by the Processor.
Supervisory Authority refers to the independent government body who is responsible for monitoring the application of GDPR.
3.1 This DPA determines the conditions of the Processing by the Processor, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Controller and in the context of the Agreement. This Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller.
3.2 The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects are detailed below (Data Processing Details).
3.3 The Processor will only process the Personal Data according to the documented instructions of the Controller, and will not use the Personal Data for its own purpose.
3.4 If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.
4.1 The Controller and the Processor shall comply with their obligations under applicable legislation and under relevant codes of conduct or standard contractual clauses (if applicable).
5.1 This DPA is applicable to every Processing of Personal Data executed in the context of the Agreement.
5.2 This DPA applies as long as the Processor processes Personal Data made available by the Controller in the context of the Agreement. This DPA ends automatically upon termination of the Agreement. The provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after termination of the DPA shall survive the end of the Agreement as regards the Personal Data communicated by or at the initiative of the Controller in the context of the Agreement.
6.1 The Processor and Controller offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject’s rights is guaranteed. Such measures shall also include the measures referred to in article 32 GDPR to ensure an adequate level of security appropriate to the risk.
6.2 Upon request the Processor shall communicate such technical and organizational measures to the Controller. Upon signing the Agreement, the Controller acknowledges those measures to be adequate for the Processing of its Personal Data.
6.3 If the Controller requests specific technical and organizational measures to be implemented by the Processor, to the extend the Processor does not have equivalent measures in place, the Controller shall reimburse the Processor for implementing such measures according to clause 17 below.
7.1 Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.
8.1 The Processor will not retain any Personal Data longer than as required for Processing of such Personal Data in the context of the Agreement. The Controller will not instruct the Processor to store any Personal Data longer than necessary. The agreed retention period can be found below (Data Processing Details).
8.2 Unless storage of the Personal Data is mandatory under Union or Member State law, the Processor shall, within a reasonable period after the end of the Processing, at the option of the Controller, either erase all Personal Data or return it to the Controller and delete existing copies.
9.1 Only those agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data. The Processor ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.
9.2 The Processor may only provide Personal Data to Third Parties with the prior written consent of the Controller.
10.1 Adherence by the Processor to an approved code of conduct as referred to in Article 40 GDPR, or an approved certification mechanism as referred to in Article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.
11.1 Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational measures, to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.
11.2 For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will reimburse the Processor in accordance with clause 17 of this DPA. Such reimbursement by the Controller shall not be due in case the Data Subject is invoking its rights because of a Data Breach proven attributable to the Processor.
12.1 Upon becoming aware of a Personal Data Breach the Processor shall notify the Controller thereof without undue delay.
12.2 At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of any Data Breaches.
12.3 The Parties will keep each other informed of any new developments with regard to any Data Breach and of the measures they take to limit its consequences and to prevent the repetition of such Data Breach.
12.4 It is the responsibility of the Controller to report any Data Breach to the Supervisory Authority or the Data Subject, as required.
13.1 The Controller expressly authorizes the Processor to engage Sub-processors for the Processing of Personal Data in the context of this Agreement. The Controller grants a general permission to the Processor to decide with which Sub-processor(s) the Processor cooperates. The Processor shall keep a list of all Sub-processors engaged, which can be consulted by the Controller upon simple request. The Processor will inform the Controller of any intended material changes concerning the addition or replacement of Sub-processors. The Controller can only refuse a Sub-processor proposed by the Processor on the basis of a well-founded justification submitted in writing.
13.2 The Processor will conclude a separate sub-processing agreement with each Sub-processor.
13.3 In such sub-processing agreement, the same data protection obligations as set out in this DPA shall be imposed on the sub-processor.
13.4 In the event the sub-processor fails to fulfill its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the obligations of that sub-processor, subject to clause 19 below.
14.1 The Processing of Personal Data will exclusively take place within the EEA, except for Processing by Sub-processors.
14.2 The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of the Controller and/or in compliance with applicable legislation. The Processor can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.
14.3 Such consent of the Controller is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.
15.1 When a ‘Data Protection Impact Assessment’ or a ‘Prior Consultation’ is required according to Article 35 and 36 GDPR, the Controller shall be responsible to implement such assessment. At the request of the Controller, the Processor will assist in this assessment as well as in the compliance with any required measures.
15.2 The Controller will reimburse the Processor for the Services so rendered in relation to this assessment and the compliance with any required measures in accordance with clause 17 of this DPA.
16.1 Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable legislation in respect of data protection.
16.2 Each Party shall notify the other party of its intention to perform an audit at least one (1) month prior to the date on which the audit will be performed by giving written notice to the other Party.
16.3 Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation.
16.4 Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to Third Parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.
16.5 The Controller and the Processor and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.
16.6 The auditing Party shall reimburse the other Party for the services so rendered in relation to the audit in accordance with clause 17 below.
17.1 The Services to be performed under this DPA for which the Processor may charge the Controller, will be charged on the basis of the hours worked and the applicable standard hourly rates of the Processor. The Processor will invoice these amounts on a monthly basis.
17.2 Payment by the Controller to the Processor for the Services under this DPA will take place in accordance with the provisions of the Agreement.
18.1 When the Processor fails to comply with its obligations under this DPA, the Controller shall first send a registered notice of default (in accordance with the relevant article of the Agreement). This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.
19.1 The Processor shall only be liable under this DPA if it (i) did not comply with its specific obligations under the GDPR, or (ii) acted outside or in violation of the lawful instructions of the Controller.
19.2 In any case, the limitations of liability as set out in the Agreement are applicable to this DPA and all services provided in respect of this DPA.
20.1 The provisions of the Agreement concerning (amongst others) amendments, severability, applicable law and jurisdiction are applicable to this DPA.
|Contact details of responsible for data protection and security|
|Object of Processing|
|Use of the Online Software Service and/or execution and performance of the survey instructed by the Client (as applicable)|
|Legal basis of Processing|
|Execution of the Agreement|
|Purpose and means of Processing|
|Use of the Online Software Service and/or execution and performance of the survey instructed by the Client, including the purpose determined by the Client for which the survey will be executed and performed (as applicable)|
|Category (type) of Personal Data being processed|
|Personal data processed during the use of the Online Software Service and/or Personal data collected and/or indicated by the Client for the purpose of the survey (as applicable)|
|Category (type) of Data Subjects|
|Data subjects that use the Online Software Service and/or data subjects that participate in or to the Client’s survey (as applicable)|
|Category (type) of Recipients|
|Data centers of the Hosting Partner as identified in or pursuant to the Agreement|
|Until five (5) years after the final use of the Online Software Services|
|Technical and Organizational Measures|
|Detailed overview available upon request in separate document|
|Transfer of Personal Data (outside the EEA)|
|The Hosting Partner as identified in or pursuant to the Agreement|