Pinipa Ltd

Subscriber Agreement

 

Updated 18th May 2016

 

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our Pinipa platform and services. You will be asked to agree to these terms and conditions before becoming a customer. Unless your organisation signs up to a specific contractual agreement, all customers and users will abide to these terms and conditions.

These terms and conditions are available in the English language only.

If you have any questions or complaints about our services, please contact us by email to info@pinipa.com.

 

 

Definitions and interpretation

1.1 In the Agreement:

Acceptable Use Policy” means the rules governing the user of our service as described in Schedule 2;

Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time;

Business Day” means any week day, other than a bank or public holiday in England;

Business Hours” means between 09:00 and 17:30 London time on a Business Day;

Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in the Order Form);

Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

Customer” means the customer specified in the Statement of Services;

Customer Confidential Information” means

(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;

(b) the financial terms and conditions of the Agreement; and,

(c) the Customer Materials;

Customer Materials” all works and materials:

(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and,

(b) otherwise provided by the Customer to the Provider in connection with the Agreement;

Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors; or

(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Order Form;

Documentation” means the documentation produced by the Provider and to the Customer specifying how the Platform should be used;

Effective Date” means the date that the Agreement comes into force as specified in the Order Form;

Expiration Date” means the date that the Agreement comes to an end as specified in the Order Form;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Free Plan” means the service level of the Platform made available by the Provider which has no charge. The Free Plan schedule may change from time to time;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Minimum Term” means the period specified as such in the Order Form;

Order Form” means the document made available by the Provider to the Customer during the order process / agreed between the parties that specifies the identity of the Customer, and other matters relating to the Agreement;

Permitted Purpose” means to collaborate on ideas, projects, plan activities, benefits, risks and impacts relating to a programme. This includes commenting, liking and sharing programme information;

Personal Data” has the meaning given to it in the Data Protection Act 1998;

Platform” means the software platform known as Pinipa that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;

Platform Hosting” means the location that the location and services that the Platform are hosted from. Amazon Web Services in Ireland unless via a third party service.

Provider” means Pinipa Ltd, a company incorporated in England and Wales (registration number 08636259) having its registered office at 144a Clerkenwell Road, London EC1R 5DF;

Schedule” means a schedule attached to the Agreement;

Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;

Service Level Agreement” means the level of functional service the Provider commits to delivering to the Customer;

Support Services” means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1;

Term” means the length of the Agreement from the Effective Date to the Expiration Date; and

Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

 

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Agreement.

 

Agreement and Term

2.1 The Agreement will come into force on the Effective Date and will continue in force until the Expiration Date, upon which it will terminate automatically unless terminated earlier in accordance with Clause 13.

 

The Platform

3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practicable following the Effective Date.

3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby extends to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

(a) the Platform must not be used at any point in time by more than the number of users specified in the Order Form, providing that the Customer may add or remove user licences in accordance with the procedure set out therein;

(b) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:

(i) where the Customer is a company, the Customer’s officers;

(ii) where the Customer is a partnership, the Customer’s partners;

(iii) where the Customer is a limited liability partnership, the Customer’s members and employees; and

(iv) where the Customer is providing services to it’s end customers, the end customers employees;

(c) the Customer must comply at all times with the terms of the Acceptable Use Policy

3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:

(a) the Customer must not allow any unauthorised person to access or use the Platform; and

(b) the Customer must not alter or adapt or edit the Platform;

3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.

3.7 The Customer shall ensure that no unauthorised person will or could access the Platform using the Customer’s account.

3.8 The Customer must take all reasonable steps not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9 The Customer must not use the Platform:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

 

Support Services and Upgrades

4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 1.

4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

 

Customer Materials

5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform.

5.2 Subject to Clause 5.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

5.3 The Customer warrants to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not:

(a) breach any laws, statutes, regulations or legally-binding codes;

(b) infringe any person’s Intellectual Property Rights or other legal rights; or

(c) give rise to any cause of action against the Provider or the Customer or any third party,

in each case in England and Wales and under English law.

5.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, the Provider may:

(a) delete or amend the relevant Customer Materials; and/or

(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

5.5 The Provider will upon request by The Customer delete all Customer Materials from the Platform within 30 days of the request to support@pinipa.com.

 

 

Free Plans

The Free Plan constitute which all of the provisions of this Agreement shall apply, save as follows:

(a) the Customer shall have no obligation to pay Platform charges in respect of the Free Plan;

(b) either party may terminate the Agreement immediately in which case no liability to; and

(c) the Customer shall have no rights over Service Level Agreements as set out in Schedule 1.

 

Charges

7.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of the Order Form.

7.2 The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with Clause 7.1.

7.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.

7.4 Charges must be paid by bank transfer (using such payment details as are notified by the Provider to the Customer from time to time)

7.5 If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may

(a) charge the Customer interest on the overdue amount at the rate of 2% per year above the base rate of Royal Bank of Scotland Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

7.6 The Provider may vary the Charges on and from any anniversary of the Effective Date by giving to the Customer not less than 60 days’ prior written notice of the variation.

7.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 90 days.

 

Warranties

8.1 The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.

8.2 The Provider warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;

(b) that it will perform its obligations under the Agreement with reasonable care and skill;

(c)) that the Platform will perform in accordance with the Documentation (subject to any Upgrades);

(d) that the Platform will be hosted at the Platform Hosting and will be available to the Customer in accordance with the uptime commitments given in Schedule 1;

(e) the Platform (excluding for the avoidance of doubt the Customer Materials) will not:

(i) breach any laws, statutes, regulations or legally-binding codes;

(ii) infringe any person’s Intellectual Property Rights or other legal rights; or

(iii) give rise to any cause of action against the Provider or the Customer or any third party,

in each case in England and Wales and under English law.

8.3 The Customer acknowledges that:

(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;

(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in the order form; and

8.4 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

 

Indemnities

9.1 The Customer will indemnify and will keep indemnified the Provider against all reasonable liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 5.3. The Provider must demonstrate and mitigate all such liabilities, damages, costs et al.

9.2 The Provider will indemnify and will keep indemnified the Customer against all reasonable liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer.

 

Limitations and exclusions of liability

10.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable law.

10.2 The limitations and exclusions of liability set out in this Clause 10;

(a) are subject to Clause 10.1;

(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

10.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

10.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.

10.5 Neither party will be liable for any loss of or damage to goodwill or reputation.

10.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.

10.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.

10.8 Neither party will be liable for any losses arising out of a Force Majeure Event.

 

 

Data protection

11.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

11.2 The Provider warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.

 

Confidentiality

12.1 The Provider will:

(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 12;

(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and

12.3 The obligations set out in this Clause 12 shall not apply to:

(a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;

(c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or

(d) Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.

 

Termination

 

13.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any term of the Agreement, and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so.

13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.

13.3 Either party may terminate the Agreement by giving at least 30 days’ written notice of termination at any time after the Expiration Date.

 

Effects of termination

14.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.5, 9, 10, 12, 14 and 17.

14.2 Termination of the Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.

14.3 Within 30 days following the termination of the Agreement, the Provider will irrevocably delete from the Platform all Customer Confidential Information.

 

Notices

15.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by email, for the attention of the relevant person, and to the relevant address email address given below (or as notified by one party to the other in accordance with this Clause).

 

The Provider:

info@pinipa.com

 

The Customer:

The addressee, email set out in the Order Form.

 

Force Majeure Event

16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the, those obligations will be suspended for the duration of the Force Majeure Event.

16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:

(a) forthwith notify the other; and

(b) will inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

 

General

17.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

17.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

17.3 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to tim. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.

17.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

17.6 Subject to Clause 10.1:

(a) the Agreement and the acceptable use policy referred to in herein constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter

17.7 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

 

Schedule 1

Service Level Agreement

Introduction

1.1 In this Schedule:

New Functionality” means new functionality that is introduced to the Platform by an Upgrade; and

1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

Helpdesk

2.1 The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:

(a) assisting the Customer with the configuration of the Platform;

(b) determining the causes of errors and fixing errors in the Platform.

Response and resolution times

3.1 The Provider will:

(a) use reasonable endeavours respond to requests for Support Services made through the helpdesk; and

(b) use reasonable endeavours to resolve issues raised by the Customer,

Limits on Support Services

4.1 The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:

(a) the improper use of the Platform; or

(b) the use of the Platform otherwise than in accordance with the Documentation.

Upgrades

5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes the appearance and/or functionality of the Platform.

Uptime commitment

6.1 The Provider shall use reasonable endeavours to ensure that the Platform is available 99% of the time during each calendar month, subject to Paragraph 7.

Scheduled maintenance

7.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out and such suspension to be for not more than 5 hours in each calendar month.

7.2 The Provider must give to the Customer at least 7 days’ written notice of schedule maintenance, including full details of the expected Platform downtime.

7.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 7 shall not be counted as downtime for the purposes of Paragraph 5.

 

Schedule 2

Acceptable Use Policy

(1) This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services (the “Service”) and any content that you may submit to the Service (“Content”).

(2) General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(3) Unlawful and illegal material

You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Service) must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime;

(g) be in contempt of any court, or in breach of any court order;

(h) be in breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) be in breach of official secrets legislation; or

(k) be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

 

(4) Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.

 

(5) Graphic material

Content must not depict violence in an explicit, graphic or gratuitous manner.

Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

 

(6) Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

 

(7) Negligent advice

Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:

(a) illness, injury or death; or

(b) any other loss or damage.

 

(8) Monitoring

Notwithstanding the provisions of this Policy, we do not actively monitor Content.

 

(9) Report abuse

If you become aware of any material on the Service that contravenes this Policy, please notify us by email.