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 the Client’s organisation (employees and contractors) who is granted access to the Online Software Service by the Client. 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. 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.
“Client” means any person or legal entity requesting a Commercial Offer and/or entering into (or wishing to enter into) contractual relations with Pointerpro, as identified in the Commercial Offer.
“Commercial Offer” means the offer to the Client with 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. Unless expressly agreed upon otherwise, an offer is valid only for the period specified in it. If no period is specified in the Commercial Offer, its validity will be limited to sixty (60) calendar days. The Commercial Offer can be agreed via click-through or via email (as applicable), after which the Agreement is concluded.
“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. If no effective date has been specified, the effective date is the date of activation of the Online Software Services to the Client.
“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.
“Free Account” means the account to which the Trial User still has access upon expiry of the Trial Term of the Trial Account. The Free Account only has very limited Features and Functionalities made which are made available by Pointerpro on its sole discretions since this is not subject to any payment.
“Hardship” means all circumstances that occur and would make performing the Agreement financially or otherwise more burdensome or difficult for Pointerpro than is reasonably foreseeable.
“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, as specified in the Commercial Offer.
“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.