“Agreement” refers to and includes the License Agreement, Order Form and these Terms and Conditions.
“Customer” is defined as the person, firm, company or other organisation purchasing the Software licence and/or Hardware.
“Commencement Date” defined as the date on which Customer is first licenced to access and use the Software Service.
“End Date” defined as the date on which Customer’s licence to use the Software Service expires, as set out in the Order Form (or any renewal Order Form).
“Device” this is defined as end point electronic device that can be used to access the tablet application as part of the Software.
“Partner” defined as a distributor, reseller or third-party supplier authorised to distribute and/or sell the Software Service on behalf of the Company.
“Term Duration” means the effective period between the commencement date and the end date of this EULA and period that the Customer is licensed to use the Software Service, as set out in the Order Form (or any renewal Order Form).
“Intellectual Property Right” means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Service Fee” defined as the fee required for full access to Software Service, made payable by the Customer to the Company or Partner, as set out in the Order Form (or any renewal Order Form).
“End User” this is defined as an individual who engages with the tablet application within the Customer operating environment.
“User Personal Data” is defined as the data collected from the End User of the tablet application who inputs their data in to the Software.
“Payment Schedule” is defined as periodic payment or the financial arrangement that is made between the Company, Partner or third party, with the Customer for payment.
“Information” means any and all data, files, documents, multimedia files, third party links, images, videos, and any other information or material whatsoever (in any format) obtained from the Customer or the End User.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
2. Software Licence
2.1. The Company agrees effective from the Commencement Date inconsideration of full payment for the Software Service, the Customer a non-exclusive, non-transferable licence to use the Software Service upon the terms of this EULA.
2.2. The Company grants the Customer the right to download and install updates to the Software Service as made available to the Customer from time to time at no additional cost to the Customer.
2.3. The Customer shall not, nor allow third parties on their behalf to;
2.3.1. assign, sub-licence, copy, publish or distribute the Software Service,
2.3.2. allow third parties to use the Software Service,
2.3.3. attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Software Service; or
2.3.4. create derivative works of the Software Service of any kind whatsoever,
2.3.5. assign the rights that the Customer has acquired under this EULA.
2.4. The Customer acknowledges that a Device licence is non-transferable between user level accounts and that once a Device licence has been added it cannot be transferred.
2.5. The Customer acknowledges that after the Term Duration has expired a subsequent renewal licence must be purchased from the Company or Partner in order for the Software Service to continue.
2.6. The Company reserves the right to make changes to the Software Service or part thereof, from time to time at the Company’s sole discretion, and may from time to time update, add, remove, modify and change any features, designs or functionalities of the Software Service. The Company will endeavour to notify the Customer in advance of changes to the Service, but cannot guarantee this.
2.7. The Software is accessible and/or compatible with the following third party hardware and software;
2.7.1. Apple i, iPad 4, iPad Air and iPad Air 2 (all hardware specifications/versions of these Apple iPad models),
2.7.2. iOS 8 – iOS 10,
2.7.3. the ProInteractive Cloud is accessible through all third party web browser applications, accessible via the website domain https://cloud.prointeractive.com.
3. Software Access Conditions
3.1. The Customer must ensure that all usernames and passwords required to access the Software Service are kept secure and confidential.
3.2. The Customer must ensure that they notify the Company immediately if there is any unauthorised use of their account and/or any security risks they may be knowledgeable of.
3.3. The Customer will:
3.3.1. not attempt to undermine the security or integrity of the Software Service systems or network, or where the Software Service are hosted by a third party, that third party’s computing systems and networks,
3.3.2. not use, misuse or input into the Software Service in any way which may impir or damage the functionality of the Software Service.
4. Term Duration
4.1. The Term Duration for the Software Service licence will begin on the Commencement Date, at which point the Company or Partner will have received full payment of the Service Fee and the Customer will have full access to the Software.
4.2. The Term Duration is fixed until the End Date to the agreed period outlined in the in the Order Form (or any renewal Order Form).
4.3. The Term Duration is not cancellable and may not be terminated except as stated under Clause 16.
5. Payment Terms
5.1. The Customer undertakes to pay the Company or the Partner the Service Fee as per the agreed in the Order Form (or any renewal Order Form) and/or Sales Invoice.
5.2. Full and complete payment as per the Order Form and/or Sales Invoice must be completed prior the Company authorising access to the Software Service. If a different payment period is agreed upon as per the Payment Schedule, the first payment as part of this Payment Schedule must be received in full prior to authorising access.
5.3. The total Payment Schedule period is fixed, unless otherwise stipulated in the Order Form.
5.4. Payment must be made via electronic bank transfer to the account designated by the Company or Partner as per the Sales Invoice.
5.5. If a deposit is taken, then full payment of the balance must be received within 5 working days from the deposit date.
5.6 If a third party leasing or finance company is used, full payment will be accepted upon receipt of funds direct from the third party to the Company and/or Partner.
5.7. If the Service Fee is not paid in accordance with the provisions hereof and any additional terms of payment communicated to the Customer by the Company or the Partner, all further access to the Software Service will be disabled without notice.
5.8. Each individual Device licence includes 500 social SMS messages allowance per annum, exceeding this, monthly billing at 3p per SMS will apply. This allowance is aggregated across the total quantity of Device licence(s) under the Order Form and/or Sales Invoice.
6. Trial Account
6.1. Trial account requests are activated solely on the Company’s discretion, and there no obligation to activate a trial licence request, nor a requirement to provide a reason as to why.
6.2. In order to register for a free 14 (fourteen) day trial account the Customer must use a valid trial code which is supplied solely to the Customer by an authorised Partner or direct from the Company.
6.3. The trial account allows one Customer only (which includes all associated companies, partners and subsidiaries) full access to Software Service for 1 (one) Device only, for a period of 14 (fourteen) days only.
6.4. If the Customer requires more than 1 (one) Device to be connected the Software Service, then the 14 (fourteen) day trial cannot be applied to the first Device connected to the Software Service, and the full applicable Service Fee would apply to 2 (two) or more Devices.
6.5. The Customer must contact the Company or our Partner and pay the applicable Service Fee in order to activate the Software Licence before the expiry date. Beyond the expiry date, access to the account will cease immediately and the account, including all associated data will be permanently deleted and unrecoverable.
6.6. During the trial account period the Customer agrees to be bound to the terms of this EULA.
7. Software Availability and Updates
7.1. The Company will endeavour to provide access to the Software Service 24/7/365.
7.2. The Company does not warrant that the Software Service shall be free from errors or interruptions during this time. In addition, the Software Service may contain faults that may lead to interruptions and errors. The Customer understands this and accepts this.
7.2.1. The Customer accepts that the Company may contact the Customer in order to request information needed to identify and remedy such errors.
7.3. From time to time the Company will perform maintenance and upgrades to the Software Service, which may result in interruptions, delays or errors in all or part of the Software Service.
7.3.1. If interruptions to the Software Service are required for maintenance or bug fixes then the Company will endeavour to minimise impact on service levels.
7.3.2. In the instance of scheduled maintenance the Company will try to communicate in advance any planned maintenance with a start date, time and estimated duration; but cannot guarantee that such notification will always be provided.
7.3.3. The Company will endeavour to notify the Customer via the Company’s website and direct email communication to the Customer via the details provided within the ‘Settings’ page of the Software Service, however we cannot guarantee this.
7.4. The Customer must acknowledge that the Software Service is provided over the internet and is dependent on third-party services, therefore external factors beyond the control of the Company may impact on the availability at times, the Customer understands and accepts this.
7.5. It is the Customer’s responsibility to check and ensure that the internet speed from their service provider at the operating location, where the Software Service is being deployed and used by the End User meets or exceeds the minimum recommendation of 5mbps speed.
7.6. If the Customer becomes aware of any Software Service interruptions, bugs or errors, the Customer should notify the Company via e-mail communication to firstname.lastname@example.org.
7.7. The company uses third party integrations with other platforms in order to deliver the Service. We are not responsible for any failures that may interrupt the delivery of the Software Service if caused by third party availability, access, accuracy or any interruption what so ever in relation to the third party.
7.8. We operate independently and do not have official partnerships or association with the integrated platforms within our Software Service. As a result we do not endorse the content or material that may be linked to the third party. The Customer’s use of the third party integrations and services is governed by their terms and conditions and privacy policies. By using the Software Service the Customer agrees that they have read and understood the third party terms of Facebook, Twitter, Instagram, Pinterest, YouTube and MessageBird. These can be accessed by visiting their respective websites.
8. Data Management
8.1. Each Party warrants that it shall comply at all times with its respective obligations under applicable data protection law and regulations, the General Data Protection Regulation 2016 (GDPR) and any further legislation that repeals, modifies or supersedes such regulation during the period of this Agreement.
8.3. The Customer ensures that they are entitled to transfer User Personal Data to the Company, so that the Company may lawfully process the data for the purpose of providing the Software Service under this Agreement and that End Users and relevant third parties have provided their consent to the Company’s processing of the User Personal Data in accordance with this EULA and the Company’s Data Processing Addendum.
8.4. Title to, and all property rights in, the User Personal Data collected through the use of the Software Service remain the exclusive property of the Customer. However, the Customers access to the data is contingent on possessing an active Software Service licence.
8.5 User Personal Data collected from End Users cannot be used or sold to third parties by the Company.
8.6. Data transmitted within the Software Service is secured using industry standard security measures to protect against the loss, misuse and alteration of the information, data, and/or content handled by our Software Service. However, the Customer must acknowledge and agree that we cannot guarantee complete security of such data or that our security measures will prevent hacking or malicious activities that may allow unauthorised access to such data.
8.7. The Customer grants the Company permission to copy, transmit, store, and back-up the User Personal Data for the purposes of meeting its obligation outlined in this EULA.
8.9. Data held by the Company may be transferred;
8.9.1. in the event that the Company sell or buy any business or assets, in which case the Company may disclose Customer data to the prospective seller or buyer of such business or assets,
8.9.2. if the Company’s assets are acquired by a third party, in which case data held by the Company will be one of the transferred assets,
8.9.3. if the Company is under a duty to disclose or share Information in order to comply with any governmental agency or a legal obligation, or in order to enforce or apply terms and other agreements; or
8.9.4. to protect the property, rights or safety of the Company, the Software Service and any Partner who are engaged to provide the Software Service. The Company will make reasonable endeavours to notify the Customer prior to making such disclosure.
9.1. Unless the Company or the Customer has the prior written consent of the other and/or a separate Non-Disclosure Agreement has been contracted prior to this Agreement, or unless required to do so by law:
9.1.1. will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither Party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or this information for its own benefit, other than in consideration of this Agreement.
9.2. The provisions of clauses 9.1 shall not apply to any information which is:
9.2.1. already available in the public domain or becomes public knowledge other than by a breach of this clause;
9.2.2. received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
9.2.3. already the possession of the receiving party without restriction in relation to disclosure prior to date of the disclosure; or
9.2.4. independently developed without access to the Confidential Information.
9.3. Each party’s obligations under this clause will survive termination of this Agreement.
10. Intellectual Property Rights
10.1. All intellectual property rights of any nature in the Software Service together with the underlying code are owned directly and solely by the Company.
10.2. The Customer agrees that the rights in the Software Service, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent and other laws, regulations and treaties.
10.3 The Customer is expressly prohibited from:
10.3.1 reproducing, copying, editing, transmitting, uploading or incorporating into any other materials, any of the Software Service; and
10.3.2 removing, modifying, altering or using any registered or unregistered marks, logos or design owned by the Company, and using it for any purpose that has not been agreed in writing between the Company and the Customer prior to its use.
10.4. All right, title and interest in and to the Software Service will remain exclusively with the Company under all circumstances.
11. Liabilities and Warranties
11.1. Neither Party will be liable for any direct, indirect, special, punitive, exemplary or consequential losses or damages of whatsoever kind arising out of your use, access or reliance to the Software Service, including loss of profit or the like whether or not in the contemplation of the parties, whether based on breach of contract, tort (including negligence), product liability or otherwise.
11.2. The Company will not be liable for any delay or failure to provide the Software Service and/or make the Software Service available for reasons that is due to third parties including without limitation to internet service providers, integrated services, data centre’s, server hosting companies and telecommunication providers.
11.3. The Customer accepts that they are responsible for assessing and insuring against appropriate risks in association to the use of the Software Service within their business operating environment.
11.4. Nothing in this EULA shall be deemed to exclude, restrict or limit liability in the case of death or personal injury resulting from the negligence of the Company or Partner.
11.5. If the Customer suffers loss or damage as a result of Company negligence or failure to comply with these EULA, any claim against the Company, arising from negligence or failure will be limited in respect of any one incident, or series of connected incidents and not exceed the Service Fee paid by the Customer in the proceeding 12 month period in connection with that claim.
11.6. The Software Service is provided to the Customer on an “as is” basis. The Company makes no representations or warranties, express, implied, statutory or otherwise, regarding the Software Service, including any warranty that the Software Service offerings or third party service will be uninterrupted, error free or completely secure.
11.7. Except to the extent prohibited by law, the Company and Partners disclaims, any and all other warranties, including implied warranties of merchantability, satisfactory quality, fitness for purpose and any warranties arising out of any course of dealing or usage trade.
12. Third-party use
12.1. Access to or the use of the Software may not be granted to a third party under any circumstances whatsoever.
13. Software Licence Renewal
13.1. The Customer will be notified 60 days prior to expiration of the Software Service licence where the Customer will be provided with the option to continue the Term Duration beyond the expiry date.
13.2. Failure to renew before the expiry date will result in immediate restriction and/or deletion of the associated accounts, login access and data.
13.3. The continuation of the license must be agreed and the Service Fee must be received by the Company or Partner no later than 14 days prior to expiry date.
14. Provision of Support Services
14.1. The Company provides support services between 09:00am – 17:00pm (UK time) Monday to Friday (excluding UK bank and public holidays) for the Term Duration.
14.2. The Company will endeavour to provide the support services during these support hours.
14.3. Support services are accessible by visiting our support page at https://www.prointeractive.com/support/ or via e-mail at email@example.com.
14.4. Support services consist of:
14.4.1. advice on access and use of the Software Service; and
14.4.2. diagnosis of technical issues and/or faults.
14.5. In the case of technical problems the Customer must make all reasonable efforts to investigate and diagnose problems before contacting the Company.
14.6. The Customer is responsible for providing an accurate and clear description of the issue and/or fault, including all circumstances and user cases.
14.7. The obligation of the Company to provide Support Services will not extend to;
14.7.1. rectification of lost or corrupted data,
14.7.2. a fault in the Customer hardware/device or a third party’s hardware, software, network connections or application or any upgrade in respect thereof; or
14.7.3. a fault in the equipment or in any other software that operates in connection with the Service.
14.7.4. onsite support unless agreed separately in writing and/or agreed as part of an additional support package.
14.8. Requests for support will be processed based on priority levels and the order of date and/or time the support ticket is received.
14.9. The severity of the case will be assigned based on the following guidelines;
14.9.1. High – These are severe impact scenarios where the Software Service has lost all functionality and/or there is an inability to access the Software Service in some form.
22.214.171.124. Support ticket acknowledged and receipt sent to the Customer within a maximum of 2 (two) hours.
126.96.36.199. Issue identified and action plan for resolution developed within a maximum of 24 (twenty four) hours.
188.8.131.52. Issue identified and resolved within a maximum of 48 (forty eight) hours from acknowledgement.
14.9.2. Medium – This is where the Customer is experiencing an issue that is impacting on the maximum efficient running and performance of the Software but not inhibiting the core functionality or usability.
184.108.40.206. Support ticket acknowledged and receipt sent to Customer within a maximum of 12 (twelve) hours.
220.127.116.11. Issue identified and action plan for resolution developed within a maximum of 72 (seventy two) hours.
18.104.22.168. The Company will endeavour to reach a resolution within a reasonable time.
14.9.3. Low Priority – These are scenarios where there is a minor issue to the Service that is causing an inconvenient and/or small impact on Customer or End User experience.
22.214.171.124. Support ticket acknowledged and receipt sent to Customer within a maximum of 24(twenty four) hours.
126.96.36.199. Fault identified and action plan for resolution developed within a reasonable time.
188.8.131.52. The Company will endeavour to reach a resolution within a reasonable time.
14.10. A timely resolution is subject to receiving an accurate description in accordance with clause 15.6, the Company will make reasonable efforts to respond, investigate and/or rectify the fault within a response time that is technically and physically possible.
14.11. The Customer acknowledges that full rectification of the fault cannot be guaranteed within the stated time periods, when there are circumstances that may be beyond the Company’s reasonable control.
15.1. This Agreement may be terminated upon notice only if either Party fails to comply with one or more of the terms outlined in this EULA, which shall be deemed as an act of default;
15.1.1. If the Customer fails to pay the Company or Partner any outstanding Service Fee;
15.1.2. if either Party breaches any of these terms and do not remedy the breach within 14 (fourteen) days after receiving notice of the breach, if it is capable of being remedied;
15.1.3. In the event that either Party files for bankruptcy, becomes insolvent or has a receiver or manager appointed to any of its assets.
15.2. The Company may suspend or terminate the Customer’s use of the Software Service immediately if:
15.2.1. the Company believes the Customer fraudulently misused or abused any aspect of the Software Service (in whole or in part); or
15.2.2. the Company believes the Customer has provided inaccurate or misleading information;
15.2.3. third party services and network providers cease to make the third party service or network available to the Company.
15.3. In the event of termination under this clause, the Company will not provide any refund for any remaining prepaid period and any outstanding balance must be paid in full.
15.4. Termination of these Terms is without prejudice to any rights and liabilities of either Party accrued up to or including the date of termination.
16.1. The Customer has the right to cancel the Service within 14 (fourteen) days from the Commencement Date. Beyond this date the right to terminate is outlined in Clause 17.
17. Entire agreement
17.1. This EULA and the terms of any other notices or instructions given to the Customer, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between the Customer and the Company relating to the Software Services and the other matters dealt with in this EULA.
18.1. Neither party shall be liable for any breach of this EULA or delay to the extent that such breach or delay is caused by an event beyond its reasonable control, provided that, the Party affected by such event notifies the other as soon as it becomes aware of such event and uses all reasonable effort to mitigate or reduce the effect on its performance under this EULA.
18.2. Clause 19.1 does not apply to any obligation to make payment.
19. No Waiver
19.1. If either Party waives any breach of these terms, this will not constitute a waiver of any other breach.
20.1. Any notice given under these terms by either Party to the other must be made in writing.
20.2. Notice will be deemed to have been provided on transmission;
20.2.1. if delivered via recorded courier during normal business hours of the recipient; or
20.2.2. via e-mail and a transmission report or return receipt indicating failure of transmission is not generated.
20.3. Notices to the Company must be sent to the registered Company address or via e-mail to firstname.lastname@example.org or to any other email address notified by email to Customer by the Company.
20.4. Notice to the Customer will be sent to the registered company address and/or e-mail address that is provided by the Customer on the ‘Settings’ page of the Software Service, and the Customer agrees to ensure that all information provided is kept accurate and up-to-date.
21.1. The Company is permitted to sub-contract or reassign in whole or in part, its Software Service obligations under this EULA. The Company shall remain liable for the Software Service provided by a sub-contracted party in line with terms within this EULA and the Data Processing Addendum.
22. No Assignment
22.1. The Customer is not permitted to assign or transfer any rights or obligations to any other third party without the prior written consent of the Company.
23. Rights of Third Parties:
23.1. A person who is not a party to these terms has no right to benefit under or to enforce any term of this EULA.
24.1. If any part or provision of this EULA is deemed to be invalid, unenforceable or in conflict with the law, that part or provision is to be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision.
24.2. The remainder of this EULA will be binding on the Parties.
25. No Partnership
25.1. This EULA shall in no way be construed as the granting of or establishment of any form of partnership or joint venture. Furthermore, nothing in this EULA shall be interpreted so as to oblige either Party to enter into any further agreement.
26. Governing Law Jurisdiction
26.1. This EULA shall be governed by and construed in accordance with English law.
26.2. Any dispute(s) arising in connection with this Agreement are subject to the exclusive jurisdiction of England and Wales.