Together with its subsidiaries and other affiliates, ClickPoint Software, Inc., a Delaware corporation (“ClickPoint Software”), makes available the “Site” (websites including, without limitation, www.clickpiontsoftware.com and www.leadexec.app and all sub-domains), “Software” (software and mobile applications), and “Services” (including, without limitation, Lead Management, Communications, Lead Routing, and Sales Enablement to help salespeople connect and convert their sales opportunities. Access to and use of ClickPoint; ClickPoint & RingResponse existing Site, Software and Services, as well as any future Sites, Software or Services provided by ClickPoint Software are governed by this Terms of Service and License Agreement (this “Agreement”).
If you are an individual subscriber, or are accessing the Site to use a Trial (as defined below) of the Services or Software, or are otherwise browsing the Site, this Agreement is between you, individually, and ClickPoint Software.
If you are an employee subscribed to the Services and Software (an “Enterprise Subscriber”), you are an “Authorized User” of your Enterprise Subscriber and (i) you represent that you have your Enterprise Subscriber’s permission and authority to use the Site, Services, Software and your Enterprise Subscriber’s “User Content” (as defined below) subject to this Agreement, (ii) this Agreement is an agreement between you, individually, and ClickPoint Software, and (iii) your Enterprise Subscriber is jointly responsible for your use of the Site, Services and Software.
If you are entering into this Agreement on behalf of an Enterprise Subscriber, you represent that you have the authority to bind the Enterprise Subscriber to this Agreement, in which case references to “you” in this Agreement shall mean the Enterprise Subscriber. If you do not have such authority, you must not accept this Agreement and may not use the Site, Software or Services.
Licensor has developed certain computer software that combines Sales Lead Management and Communications that it provides on an Application Software Provider (“ASP") basis under the name ClickPoint and RingResponse (collectively with all users' manuals, handbooks, or other written or electronic material relating to ClickPoint (the “Documentation") the “ClickPoint"&”RingResponse”).
Licensee desires to license from Licensor the ClickPoint and or RingResponse on an ASP basis for use by Licensee and Licensee's subcontractors in its sales lead driven business.
2.1 An “Affiliate" means any corporation, partnership, joint venture, or other entity (1) which Licensee owns or controls, directly or indirectly, stock or other interest representing more than twentyÂfive percent (25%) of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (2) if a partnership, as to which Licensee or another Affiliate is a general partner; (3) to which Licensee provide substantial management services under contract; or (4) that Licensee otherwise control or assist in matters of management and operations. “Documentation" means all users' manuals, handbooks, or other written or electronic material relating to the ClickPoint.
2.2 “End-User Materials" means documentation that describes the function and use of one or more of the programs in ClickPoint & RingResponse in sufficient detail to permit use of the program.
2.3 “Licensee" means the Licensee as defined in the introductory paragraph above.
2.4 “ClickPoint" means the ClickPoint Software, the ClickPoint Lead Management Solution and all related Documentation. ClickPoint has the capabilities included on the Licensor Price Schedule attached hereto.
2.5 “RingResponse” means the communications solution used for inbound call capture and routing, as well as manual outbound dialing solution.
2.5 “Object Code” means the ClickPoint and RingResponse assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.
3. GRANT OF LICENSE
3.1 Use License. Subject to the terms and conditions of this Agreement and in consideration for the payment of the applicable License Fees (as defined in the billing portal), Licensor hereby grants to Licensee and Affiliates a limited, nonÂexclusive, nonÂtransferable, non-sublicensable license (the “Software License”), during the Term of this Agreement, to access and use ClickPoint & RingResponse through a compatible Internet browser (or some other mutually approved delivery mechanism) as well as any related Documentation. Licensee may provide access to ClickPoint to the number of Authorized Users set forth on the applicable billing and user management portal. Each Authorized User will be considered an agent of Licensee, and not an agent of Licensor. Licensor makes no representations or warranties for the benefit of any Authorized User. Licensee will be responsible for (a) ensuring that each Affiliate of Licensee and each Authorized User complies with all of the terms and conditions of this Agreement and (b) all of the acts and omissions of each Affiliate of Licensee and any Authorized Users in connection with this Agreement as if such acts or omissions of the Affiliate of Licensee or Authorized User, as applicable, were Licensee’s own acts or omissions subject to the terms and conditions under Section 8.5 of this Agreement.
3.2 Limitations on Use. Licensee will use LeadExec, RingResponse, or ClickPoint only for Licensee’s own internal business and in accordance with the Documentation provided by Licensor, and not directly or indirectly for the use or benefit of anyone other than Licensee, and only pursuant to the scope of the grant of the Software License set forth herein. Licensee acknowledges that the Software and the Documentation, including, without limitation, the know-how embodied therein, constitute the valuable trade secrets of Licensor. Licensee may not, and may not allow others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer, decode, modify, create derivative works based on, or customize the Software or any component thereof (including any Licensor API); (b) copy, use, or commercially exploit in any way the Software (including the processes, methods and know-how embodied therein) or any component thereof (including any Licensor API), other than as expressly allowed in this Agreement; (c) distribute, assign, sell, lease, sublicense, grant a security interest in, or otherwise offer the benefits of the Software (including any Licensor API) to any third party, whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business; or (d) access (or attempt to access) the Software by any means other than through the interface that is provided by Licensor to Licensee.
3.3 Licensee Data. Licensee is solely responsible for all Licensee Data accessible on or through the Software. Licensee is responsible for ensuring that Licensee Data is collected and shared in compliance with Legal Requirements, and that the contemplated use of Licensee Data by Licensor as set forth in this Agreement does not violate the rights of any third party. Notwithstanding the foregoing, Licensor reserves the right to (a) suspend or permanently terminate any Authorized User’s use of the Software (or any portion thereof) if Licensor believes, in its sole but reasonable discretion, that such use could be harmful to Licensor or Licensee in any way, including, without limitation because such use could create liability for Licensor or Licensee or otherwise negatively impact Licensor’s or Licensee’s reputation or goodwill; and (b) remove any Licensee Data from the Software that Licensor believes, in its sole but reasonable discretion, violates any Legal Requirement or the terms of this Agreement or if Licensor believes, in its sole but reasonable discretion, that such Licensee Data could be harmful to Licensor or Licensee in any way, including, without limitation, because it could create liability for Licensor or Licensee or otherwise negatively impact Licensor’s or Licensee’s reputation or goodwill. Licensor will remove any Licensee Data from the Software on the next business day after Licensor receives written notice from Licensee requesting the removal of such Licensee Data.
3.4 Service Levels. Licensor shall support ClickPoint and RingResponse in accordance with the service levels specified in the Service Level Agreement.
3.5 Privacy & Information Security. With respect to information provided to Licensee by its customers or prospective customers (collectively, “Customer Information”), except as otherwise provided herein, Licensor agrees: (i) to implement and maintain industry standard security measures to protect against unauthorized access or use of Customer Information; (ii) not to use the Customer Information for any purpose other than to perform its obligations under this Agreement, unless otherwise authorized by Licensee in writing; (iii) to promptly forward any individual’s request for access to his or her Customer Information to Licensee and to cooperate with Licensee in responding to such access request, including providing information regarding the collection, use and disclosure of such Customer Information by Licensor; (iv) to promptly notify Licensee of any complaints received or any notices of investigation or non-compliance from any governmental or regulatory authority or agency related to the collection, use or disclosure of Customer Information, and to reasonably cooperate with Licensee in any such investigation; and (v) to immediately notify Licensee regarding any actual or suspected security incident that Licensor either suffers or learns of that either compromises or could compromise the Customer Information (e.g., physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft or a PC (laptop or desktop), loss/theft of printed materials, etc.) (collectively, a “Security Breach”).
4. LICENSE FEES AND PAYMENT TERMS
4.1 License Fees. Licensee agrees to pay the license fees (“License Fees") and other charges identified in the then current Licensor Price Schedule for the Licensee License. After the first year of this Agreement, Licensor may modify the license fees or other charges published in the Price Schedule upon forty-five (45) days' notice to Licensee published by eÂmail, or by any method described in section 12.10 below for the giving of notice; provided, however, that Licensor may not increase the License Fee more than five (5%) in any 12 month period.
4.2 Payment Terms. Licensor shall process a credit card and provide a paid in full invoice via the ClickPoint billing portal, available to Licensee on or before the fifth business day of each month for the License Fees due for the preceding month.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall continue until you cancel your subscription or until terminated by ClickPoint Software. You may cancel your subscription at any time, although only an authorized representative of an Enterprise Subscriber may cancel the Enterprise Subscriber’s account.
5.2 Termination with Cause. Licensor has the right to terminate this Agreement with “reasonable cause" with a 30 day written notice to Licensee. Reasonable cause includes violation of privacy and confidentiality provisions of Section 9 herein, failure to make licensing payment pursuant to Section 3 herein, or violation of Section 12.2. Licensee shall have the right to cure any violation within the 30 day period following receipt of notice.
ClickPoint Software may deny you access to all or any part of the Services or terminate your account with or without prior notice if you engage in any conduct or activities that ClickPoint Software determines, in its sole discretion, violate this Agreement or the rights of ClickPoint or any third party, or is otherwise inappropriate. Without limitation, ClickPoint may deny you access to the Services, or terminate this Agreement and your account.
6. ADDITIONAL OBLIGATIONS OF PARTIES
6.1 Publicity and Press Releases. Neither party shall use the other's trademark, trade name, logo, or other designation without the prior written consent of the other party.
7. SUPPORT, MAINTENANCE AND TRAINING
7.1 OnÂline Support to Licensee. Licensor shall make online support services available to Licensee. EÂmail support consists of Licensee's ability to eÂmail questions to a pre-established eÂmail address at Licensor firstname.lastname@example.org or by submitting a ticket or Intercom Chat. Licensor will make reasonable efforts to provide an initial response via eÂmail, chat, or ticket within (1) hour of receipt, if such questions are received during normal business hours (8:00 a.m. To 5:00 p.m.) MST excluding DST, Monday through Friday, exclusive of federal holidays). Licensor will be available via live chat messaging from 8am to 5pm Monday through Friday. If an emergency arises beyond business hours Licensor technical staff may be reached by our after-hours support line.
7.2 Training and Consulting. Licensor shall provide access to training, at Licensor's prevailing rates on the Price Schedule, to Licensee's personnel regarding operation of ClickPoint & RingResponse.
7.3 Maintenance. Licensor will use commercial best effort to maintain the ClickPoint and RingResponse to do an “Update" or version “Upgrade" to the solutions when necessary.
8. LIMITED WARRANTY
8.1 Software Rights. To Licensor’s actual knowledge, Licensor has all right, power, authority and Intellectual Property Rights necessary to license LeadExec and ClickPoint to Licensee in accordance with the terms of this Agreement. To the extent the services contain materials created by third parties or confidential information of third parties, Licensor has: (i) obtained all permissions necessary to disclose such confidential information of third parties and to deliver the services and for all purposes set forth in this Agreement; and (ii) obtained all rights necessary to grant the rights hereunder.
8.2 Material Defects. The ClickPoint and RingResponse and any media on which it is delivered will be free from any malfunction, error, or other defect that constitutes a substantial nonconformity with the specifications for the ClickPoint and RingResponse ("Material Defects"). Licensor's sole responsibility under this warranty shall be, at Licensor's option, to repair the ClickPoint or media. Licensor does not warrant that the functions contained in the ClickPoint and RingResponse will meet a user's requirements or that the operation of the ClickPoint and RingResponse will be uninterrupted or error free.
8.3 Limitations. The foregoing warranties apply only to Licensee. Licensor makes no warranties, express or implied, to any third parties, including Licensee's customers, except those contained in the written license agreement accompanying the ClickPoint & RingResponse. Licensor shall have no obligation to provide warranty services if any Material Defect in the ClickPoint or media is caused by: (i) a malfunction of hardware or software not supplied by Licensor; (ii) modification of the ClickPoint by any person or entity other than Licensor; (iii) operator error; (iv) use of the ClickPoint that is not in accordance with the operating instructions for the ClickPoint; or (v) accident, abuse, or misapplication.
8.4 Disclaimer. EXCEPT FOR LICENSOR'S EXPRESS WARRANTIES STATED HEREIN, ALL LICENSOR SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. LICENSOR AND ITS LICENSORS DISCLAIM ALL IMPLIED WARRANTIES WITH RESPECT TO THE LICENSOR SOFTWARE OR OTHER PRODUCTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.5 Limitation of Liability. LICENSOR'S LIABILITY ARISING OUT OF THIS AGREEMENT OR LICENSING OF THE LICENSOR SOFTWARE SHALL BE LIMITED TO THE LICENSE FEES PAID BY LICENSEE DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LICENSOR'S LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY LICENSEE OR ANY EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOR SHALL ANY LICENSOR OF LICENSOR BE LIABLE FOR ANY DIRECT OR OTHER DAMAGES OF ANY KIND WHATSOEVER, ARISING OUT OF THE USE OF THE PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS AND TRADEMARKS
9.1 Ownership and Intellectual Property Rights. Licensee hereby acknowledges Licensor's exclusive ownership, title, and interest in the Intellectual Property Rights and Marks and Trademarks as defined herein. Licensee further agrees that Licensor retains ownership and all forms of Intellectual Property Rights in the ClickPoint & RingResponse, Confidential Information (as defined below), and Documentation. As used herein, the term "Intellectual Property Rights" includes without limitation all right, title, and interest in and to all (i) Letters Patent and all filed, pending, or potential applications for Letters Patent, including any reissue, reexamination, division, continuation, or continuation inÂ part applications throughout the world now or hereafter filed; (ii) trade secret rights and equivalent rights arising under the common law, state law, federal law, and laws of foreign countries; (iii) copyrights and other literary property or authors rights, whether or not protected by copyright under common law, state law, federal law, and laws of foreign countries; and (iv) proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names under common law, state law, federal law, and laws of foreign countries. Licensee assigns to Licensor any Intellectual Property Rights it may now or hereafter possess in the ClickPoint or RingResponse, Confidential Information, and documentation and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights.
9.2 Ownership of Licensee Data. Licensor hereby acknowledges Licensee's exclusive ownership, title, and interest in the data Licensee posts to Licensor's website (“Licensee Data") in the operation of the ClickPoint & RingResponse. Licensor further agrees that it will not use, manipulate, sell, transfer, divulge, give third party access to, or otherwise use Licensee Data for any purpose other than to fulfill its obligations under this Agreement.
9.3 Use of Marks. As used herein, the terms "Marks" or "Trademarks" mean all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names Licensor currently uses or may adopt from time to time to identify Licensor, its products, or any related parties or materials. During the Term, Licensee shall have the right to indicate to the public that it is an authorized provider of the ClickPoint and use the Marks to identify the ClickPoint; but shall not make any other use of the same (and shall not make any use of any trademarks, trade names, symbols, or logos of any of Licensor's licensors) for any reason, except as expressly authorized by this Agreement. At no time during or after the term of the Agreement shall Licensee challenge or assist others to challenge Licensor's Intellectual Property Rights in the Marks or the registration thereof or attempt to register any trademarks, trade names, or other proprietary indicia confusingly similar to the Marks, nor shall the authorized use of the Marks or Trademarks create in Licensees' favor any right or interest in the Licensor Marks or Trademarks.
9.4 Proprietary Marks, Legends, and Notices. Licensee shall not remove any proprietary marks, legends, or patent or copyright notices that appear on the ClickPoint packaging or products, including any Documentation or any whole or partial copies thereof. Unless the parties have executed a separate written agreement to the contrary, Licensee may not reliable or distribute the ClickPoint under any name other than that used by Licensor. Licensee shall not modify or supplement the Documentation unless approved in writing by Licensor. Licensor may amend the ClickPoint and the markings and notices relating thereto upon reasonable notice to Licensee.
9.5 Quality Control. All representations of the Marks that Licensee intends to use shall be exact copies of those used by Licensor or shall first be submitted to Licensor for prior written approval of design, color, and other details. Upon reasonable notice and request, Licensor may inspect copies of the ClickPoint and other materials on which the Marks are used so that Licensor may monitor the quality of the products bearing the Marks.
As used in this Agreement, "Confidential Information" shall mean all information that is disclosed by one party (the “Disclosing Party") to the other party (the “Receiving Party"), including without limitation, hardware and software designs, product specifications and documentation, trade secrets, business and product plans, marketing information, and other confidential business information. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving party; (ii) is disclosed by the receiving party with the prior written approval of Licensor; or (iii) is disclosed pursuant to any judicial or governmental order, provided that the receiving party gives Licensor sufficient prior notice to contest such order. The Receiving Party shall not disclose, or
Permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the Disclosing Party (except such disclosure or access which is required to perform any obligations under this Agreement). The Receiving Party shall insure that any employees, or any third parties who receive access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing, or otherwise revealing the Confidential Information. Without limiting the foregoing, the Receiving Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care.
11. NOTIFICATION OF CLAIMS OR UNAUTHORIZED USE
Licensee shall promptly notify Licensor in writing upon: (i) receipt of any notice of any claims by third parties that might affect the rights of Licensor or any of its licensors in the ClickPoint and (ii) its discovery of any unauthorized use or infringement of the Confidential Information, Documentation, the ClickPoint or Licensor's Intellectual Property Rights with respect thereto. Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate and provide full information and assistance to Licensor and its counsel in connection with any such action or proceeding. Licensor shall promptly notify Licensee in writing upon its discovery of any unauthorized use of Licensee's Confidential Information, including without limitation, Licensee's data.
12.1 Indemnification by Licensee. Licensee shall protect, defend, indemnify, and hold Licensor and its officers, members, directors, agents, and employees harmless, at its expense, from any and all claims, demands, liabilities, obligations, deficiencies, losses, damages, actions, suits, proceedings, assessments, judgments, or settlements, including all reasonable costs and expenses related thereto such as attorneys' fees (each a “Claim"), that:
a. Arise from or are connected with the development, modification, use and distribution of the ClickPoint by Licensee including, but not limited to, any unauthorized reproduction, warranty violations, inadequate installation, maintenance, defects in design, workmanship, materials, or otherwise or any misrepresentation or covenant or agreement on the part of Licensee relating to the ClickPoint; provided, however, that Licensee shall not be liable under this section for claims arising solely from damage caused by the malfunction of the ClickPoint;
b. Arise from or are connected with any breach by Licensee of any Provision of this Agreement.
c. Arise from or are connected with any violation of the rules and regulations promulgated by the Federal Communications Commission to comply with the Telephone Consumer Protection Act (TCPA), 42 U.S.C. Â§Â§ 227 et seq. that occur as a result of Licensee's failure to comply with such rules, such as failure to obtain express written consent for all autodialed calls, or any other violations that could subject the parties to fines or damages.
12.2 Indemnification by Licensor. Licensor shall protect, defend, indemnify, and hold Licensee and its officers, members, directors, agents, and employees harmless, at its expense, from any and all Claims that:
a. Arise from third party claims that the ClickPoint or RingResponse or its use infringes the Intellectual Property Rights, including without limitation, the U.S. patents, copyrights or similar intangible rights, provided that Licensee will promptly notify Licensor of the matter, cooperate with Licensor as reasonably requested, and permit Licensor to control the investigation, defense, and disposition of the same.
13. GENERAL PROVISIONS
13.1 Export. Licensee shall not export, directly or indirectly, the ClickPoint, or other information or materials provided by Licensor hereunder, to any country, or provide access to any person for which the United States or any other relevant jurisdiction prohibits such exportation, without first obtaining such license or approval. Licensee shall comply with the latest United States export regulations, and the Licensee shall defend and indemnify Licensor from and against any damages, fines, penalties, assessments, liabilities, costs, and expenses (including reasonable attorney's fees and court costs) arising out of any claim that the ClickPoint or other information or materials provided by Licensor hereunder were exported or otherwise shipped, transported, or distributed in violation of applicable laws or regulations.
13.2 Compliance with Laws of Other Jurisdictions. Licensee shall comply with all laws, legislation, rules, regulations, governmental requirements, and industry standards with respect to the ClickPoint, and the performance by Licensee of its Obligations hereunder, existing in any jurisdiction into which Licensee directly or indirectly distributes the ClickPoint. In the event that this Agreement is required to be registered with any governmental authority, the Licensee shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
13.3 Force Majeure. In the event that either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party's reasonable control the time for such party's performance shall be extended for the period of delay or inability to perform due to such occurrence; provided, however, that the payment of any sums of money owed by Licensee to Licensor shall not be excused by the terms of this paragraph.
13.3 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right operate as a waiver of any right by such party.
13.5 No Agency. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
13.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of AZ, without regard to its choice of law provisions.
13.7 Cost, Expenses, and Attorneys' Fees. If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses, and reasonable attorney's fees, incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
13.8 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Licensee, except to a successor to the whole of the Licensee's business, without the prior written consent of Licensor. In the case of any permitted assignments or transfer this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
13.9 Notices. Except as otherwise provided herein, all notices regarding obligations under this Agreement shall be in writing and either personally delivered or sent via facsimile, public key signed Email, or certified mail, postage prepaid and return receipt requested addressed, to such other party at the address specified on the first page. All notices shall be effective upon receipt.
13.10 Entire Agreement; Amendment. This Agreement, including the Schedules attached hereto, constitutes the entire agreement between the parties with regard to the subject matter hereof. No waiver, consent, or modification of terms of this Agreement shall bind either party unless in writing and signed by both parties, and then such waiver, consent, or modification shall be effective only in the specific instance and for the specific purpose given. Licensee shall not be construed as a third-party beneficiary of any agreement between Licensor and any of its licensors.
14. TEXTING AND EMAIL SPAM POLICY
Using the ClickPoint Software with RingResponse service for either email or Text SMS spam will result in your account deactivation immediately. Sending unsolicited emails or Text SMS messages is something we take seriously at ClickPoint.
Text messaging (SMS) currently regulated by both DNC and TCPA laws with several governing bodies that oversee the legislation enacted to protect consumers from spam. For this reason, ClickPoint has included both Opt-In and Opt-Out safeguards that are all enabled by default to protect both clients who license the software and consumers.
As a paying user of the RingResponse and ClickPoint solution, you are also responsible for adhering to governing laws. As a paying client who uses both ClickPoint and RingResponse you are agreeing to both the Terms of Service and to adhering to the rules governing both email and Text SMS spam.
To be in good standing, you must follow the general guidelines for using Text SMS and email messaging for any communication to existing or potential clients.
- Text and Email content must be age appropriate for all audiences. We will not tolerate any profane or inappropriate messaging.
- Customers, Leads, or Prospects supplying information used in sales communication that is communicated with via Text SMS or email must opt-in to receive messages from you or anyone working under your license if you will be advertising to them or will be sending promotional material to them.
- Customers must be able to opt-out of your marketing campaigns or promotional material, and you will in no way try to alter the built-in opt-out solutions, included in every communication for both email and Text SMS.
- On the first message to the customer, it is best to provide information on how they can opt out of the service and that data and message rates may apply. If you decide to disable the initial opt-in, it is your responsibility to ensure the customer has opted-in elsewhere, such as a landing page or on your website. It is your responsibility to collect and store the opt-in, and the burden of proof is your responsibility if you disable the automatic opt-in.
- Understand that if a message is received from the customer to stop Text SMS communication or email communication, they will automatically insert to a DNC (Do Not Contact) repository. It is your responsibility to comply with that request and use the Opt-out function provided by ClickPoint Software to prevent further messages from being sent to that user.
- If a customer asks to be entered to the DNC list for any reason via a phone conversation where this is no automated way to record their request, it is the responsibility of you and your company, officers, or agents to comply with that request and manually add them to the DNC list through the manual tool located in ClickPoint. These opt-out conditions include: Do Not Mail, Do Not Email, Do Not Text, Do Not Call, and Do Not Knock.
- ClickPoint Software is in no way liable if you tamper with, disable the opt-in, or do not manually record opt-out information.
Service Level and SLA Agreement
Licensor Service Level Agreement
|LICENSOR STANDARD SERVICE LEVEL|
With the exception of planned downtime windows, the system operating environment will be operational 99.9%.
Licensor utilizes a cloud hosting environment and redundant servers to ensure a 99.9% uptime. Licensor will host with Microsoft Azure. Licensor maintains an Enterprise Level agreement with Microsoft.
Planned downtime window
The system may have planned downtime windows of system upgrade and maintenance at night, after business hours.
Most of Licensor’s upgrades do not require downtime but in the event it is required, proper written notification and planning would occur to the extent possible. Licensor will provide advance written notice at least forty-eight (48) hours in advance of a planned downtime event.
Hosting and Backup
Licensee’s ClickPoint system is hosted with a highly scalable databases within the Microsoft Azure hosting environment.
Licensor will provide a full API and customer solutions team to ensure data is integrated with other internal solutions. Licensor uses DPM for data backup and storage.
See below Severity Level and Resolution Matrix
ClickPoint system response time will be within one to three (1-3) seconds for all customer facing transaction data interfaces (e.g. lead capture interface) for 99.0% of all transactions captured on a daily basis.
Reports will be generated and available for viewing within five (5) minutes of report request submission for 90% of all report requests on a monthly basis.
System down recovery
System outage recovery will be within fifteen (15) minutes of outage detection on average for monthly basis. Licensor will inform Licensee with a notice via email or Intercom in the case of outages that last longer than fifteen (15) minutes (each, an “Incident”).
Licensor utilizes Site 24x7 which monitors our servers from external sites in regions throughout the US.
Using our system with a load balanced and clustered database server, outages and downtime are minimized.
In addition to Site 24x7 monitoring listed on our website we also provide server monitoring that is outside of the Azure environment.
Data will be backed up every thirty (30) minutes and in the event of an outage, recovered within thirty (30) minutes. Using DPM we backup our solution with thirty (30)-minute snap shots and perform nightly full backups.
Licensee’s contact(s) will be notified of all outages and system impairments.
Licensor utilizes a real-time monitor of any outage using Site 24x7
Licensor notifies clients via Twitter, Intercom, or email of any outage
Severity Level and Resolution Matrix
The following support SLA’s and plan are for ongoing support and administration of ClickPoint and LeadExec.
Designated Contacts. “Designated Contacts” are Authorized Users that Licensee identifies as primary liaisons between Licensee and Licensor for technical support for the Software. Licensee shall identify to Licensor, in writing, between one (1) and four (4) Designated Contacts. Licensee shall notify Licensor whenever Designated Contact responsibilities are transferred to another individual.
Licensees’ Designated Contacts shall be responsible for:
- Overseeing Licensee’s support ticket and incident activity
- Developing and deploying troubleshooting processes within Licensee’s organization, and
- Resolving password reset, username and lockout issues for Licensee.
Submitting a Ticket.
Designated Contacts may submit a case in any of the following ways:
- In ClickPoint by logging in, clicking “Help,” clicking “Contact Support,” and clicking “Open a Ticket,” then providing the requested information and clicking “Submit.”
- By telephone call to Licensee Support. For Severity Level 1 issues, Licensee must call Licensee Support.
Authorized Users will be asked to provide their company name and contact information, and each ticket will be assigned a unique ticket number. For assistance with User password resets, Authorized Users should use the “Forgot your password?” link on the login page or contact a Designated Contact or Licensee system administrator. For assistance with ClickPoint usernames and lockouts, Users should contact a Designated Contact or Licensee system administrator.
Issues will be categorized and handled according to an assigned severity level. The case severity level is selected by the Authorized User at the time of ticket submission, and will be updated by Licensor as follows:
|Level 1 – Critical||Critical production issue is affecting all Authorized Users, including system unavailability and data integrity issues with no workaround available.|
|Level 2 – Urgent||Major functionality is impacted, or performance is significantly degraded. The issue is persistent and affects many Authorized Users and major functionality. No reasonable workaround is available.|
|Level 3 – High||System performance issue or bug affecting some but not all Authorized Users. Short-term workaround is available, but not scalable. Includes time-sensitive requests such as requests for feature activation, workflow change, data import, or a data export.|
|Level 4 – Medium||Inquiry regarding a routine technical issue; information requested on system capabilities, navigation, or configuration; bug affecting a small number of Authorized Users. A reasonable workaround is available.|
Target Initial Response Time. Licensor will use commercially reasonable efforts to respond to each case within the applicable response time described in the table below, depending on the severity level set on the case.
|Severity Level||Target Initial Response Time|
|3||Four business hours2|
|4||Eight business hours2|
1 Severity Level 1 initial response times are 24x7, including weekends and holidays.
Level 1 incidents must be submitted via telephone as described above.
Severity Level 1 and 2 target initial response times do not apply to tickets submitted via email.
2 Severity Level 3 and 4 target initial response times include local business hours only and exclude weekends and holidays, and do not apply to cases submitted via e-mail.
Reproducible errors that cannot promptly be resolved will be escalated to higher support tiers for further investigation and analysis.
Cooperation. Licensor must be able to reproduce errors to resolve them. Licensee agrees to cooperate and work closely with Licensor to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate. Also, subject to Licensee's approval on a case-by-case basis, Authorized Users may be asked to provide remote access to their Licensor application and desktop system for troubleshooting purposes.
Acceptable Use Policy
This Acceptable Use Policy describes actions that ClickPoint (“ClickPoint”) and RingResponse ("RingResponse") prohibits when using its website and services (the "Services"). The terms "you," "you're," and "yours" refer to the customer. Our Terms of Service govern the Acceptable Use Policy. Our Terms of Service take precedence over any conflicting Acceptable Use Policy provision. Full terms of service are found in the billing section of your account. By using RingResponse, ClickPoint, and LeadExec via the ClickPoint website or downloadable software application, you consent to the terms and conditions of this acceptable use policy. If you do not agree to this acceptable use policy, please do not use the website, application, API’s and services.
ClickPoint Software may in its sole discretion determine whether you violate this Acceptable Use Policy. The Services may be used only for lawful purposes and may not be used for any illegal activities. Using the Services in an illegal, abusive or any other manner that interferes with or diminishes others' use and enjoyment of the Services is prohibited.
The following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Services. This list is provided by way of example and shall not be considered exhaustive.
- Adversely impacting the availability, reliability, or stability of RingResponse, ClickPoint, or LeadExec Services;
- Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to ClickPoint Software, to any user of our Services, or to any of our or their respective customers;
- Testing or reverse-engineering the Services to find limitations, vulnerabilities or evade filtering capabilities;
- Using the Services in any manner that may subject ClickPoint Software or any third party to liability, damages or danger;
- Using the Services in any manner that violates any applicable third party policies or requirements that RingResponse has communicated to the customer;
- Using the Services in any manner that violates the Mobile Marketing Association guidelines or best practices, carrier guidelines, or any other industry standards.
- Engaging in fraud regarding your account;
- Purchasing phone numbers to port them to another carrier;
- Using any part of ClickPoint Software’s Marks including; RingResponse, LeadExec, or ClickPoint’s marks other than as expressly permitted;
- Engaging in spamming or other unsolicited call or text advertising, marketing or Using your account to engage in fraudulent activity concerning third parties or otherwise using your account to bypass phone identification systems such as those by classified advertising websites;
- Engaging in any activities that violate anti-spamming laws, TCPA, and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
- Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of ClickPoint Software’s Services.
- Using phone numbers provided by RingResponse ("RingResponse Phone Numbers") for SMS in a manner that is not designed to enhance or augment the person-to-person nature of SMS communications.
- Offering any Emergency Services to users. "Emergency Services" shall mean services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
- Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message, text SMS, or phone call using your account.
- Promoting or engaging in illegal activities.
- Using RingResponse's services to activate or use accounts or services that require a unique phone number;
- Testing RingResponse's system capacity by creating an excessive number of simultaneous calls;
- Engaging in activities or transmitting through the Services any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
- Harvesting or otherwise collecting information about others, including email addresses or phone numbers, from ClickPoint Software, ClickPoint, or RingResponse’s website without express consent.
- Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
- Violating or facilitating the violation of any U.S. or foreign law regarding the transmission of technical data or software.
- Interfering with or disrupting networks connected to the Services or violating the regulations, policies or procedures of such networks.
- Improperly engaging in an activity for which the United States Federal Communications Commission has restricted or regulated about proper use of the public telephone network.
- Using the Services, or a component of the Services, in a manner not authorized by ClickPoint Software.
Violation of this Acceptable Use Policy may result in the immediate suspension or termination of Your account, civil and criminal liability, and ClickPoint may, in addition to any remedy that it may have at law or in equity, terminate permission for You to use the Services. In such event, You are still liable for any outstanding charges accumulated through Your use of the Services, including uses in violation of this Acceptable Use Policy or the laws of any jurisdiction. Also, ClickPoint Software may investigate incidents that are contrary to this Acceptable Use Policy and provide requested information to third parties who have provided notice to ClickPoint Software stating that they have been harmed by your failure to abide by this Acceptable Use Policy. Clickpoint Software’s failure to enforce this policy in every instance in which it might have application does not amount to a waiver of ClickPoint's rights hereunder.
Changes to The Acceptable Use Policy
We reserve the right to change the Acceptable Use Policy from time to time without notice by posting changes to the ClickPoint Software website. When we do, we will also revise the "last update" date of the Acceptable Use Policy.
5425 E. Bell Rd Suite 143
Scottsdale, AZ 85254 United States
This Acceptable Use Policy is effective as of June 22, 2018.
ClickPoint Software provides proprietary hosted software that includes ClickPoint, LeadExec, and RingResponse developed by ClickPoint Software in Scottsdale, Arizona, USA. ClickPoint will only contact you if you have voluntarily provided your information. We do not sell your information.
By visiting a ClickPoint Software website or providing personal information to us, you are consenting to the collection, use, and disclosure of your personal information as described in this Policy. If you do not consent to the collection, use and disclosure of your personal information as described in this Policy (and any applicable Country or Web Site Privacy Statements), do not use ClickPoint Software Internet Sites, contact ClickPoint Software, or Submit Data to ClickPoint Software via an internet form. To the extent required by applicable law, whenever ClickPoint Software collects personal information on a ClickPoint Software Internet Site, ClickPoint Software will:
- Provide timely and appropriate notice to you about its data practices;
- Collect, use, disclose and transfer your personal information only with your consent, which may be express or implied, depending on the sensitivity of the personal information, legal requirements, and other factors;
- Collect your personal information only for specific, limited purposes. The information we collect will be relevant, adequate and not excessive for the purposes for which it is collected;
- Process your personal information in a manner consistent with the purposes for which it was originally collected or to which you have subsequently consented;
- Take commercially reasonable steps to ensure that your personal information is reliable for its intended use, accurate, complete, and, where necessary, kept up-to-date.
What Information Do We Collect?
- Information about your visits to and use of this website;
- Information about any transactions carried out between you and us on or about this website, including information relating to any purchases you make of our goods or services;
- Information that you provide to us to register with us and to subscribe to our website services and email notifications.
Client Adherence to Regulations
Before accepting any new clients, we provide them with an Agreement to our Terms and Conditions which must be signed by an agent authorized to enter into such agreements. We emphasize the legality of solicitation of information as it pertains to the CAN-SPAM Act of 2003. It reads as follows:
“Partner Data” shall mean information input into the Software interface by Partner.
ClickPoint does not permit non-compliance with the CAN-SPAM Act. If Partner’s domain is listed on Spamhaus, and Spamhaus will not remove the Partner’s domain, ClickPoint will take appropriate steps to assist the Partner in finding a resolution. If the parties can not find a resolution, Partner must be removed from ClickPoint’s IP space within two weeks from the date that written notice is provided to Partner by ClickPoint. If Partner does not remove itself from ClickPoint’s IP space within such 2-week period, then ClickPoint reserves the right to terminate the Agreement (and Partner's use of the Site and the Services) immediately, without liability to ClickPoint and within 30 days of termination ClickPoint will transfer all Partner Data to Partner. All clients and partners must comply with the CAN-SPAM Act, the Telecommunication Privacy Act, and all DNC (Do-Not-Call) regulations to utilize the ClickPoint solutions. Unless otherwise stated in this section 1, ClickPoint reserves the right to ask the client or partner to cure the violation, or it may provide client or partner with 14 days notice of termination.
In addition to the above, we require all of our clients to adhere to a Suppression List (DNC for Mail, Phone, Email, Knock, Text) and Opt-out notification on all unsolicited emails.
As a security measure and to ensure that our website and computer network remain available to all customers, ClickPoint may use software programs to monitor network traffic or to identify unauthorized attempts to upload or change information, or otherwise cause damage. These software programs may also collect information regarding your use of our website and computer network.
You may also be asked to disclose Personal Information to us so that we can provide technical support assistance and information to you if you are a paying client. For example, we may collect Personal Information from you (such as an e-mail address, system information, and problem descriptions) to provide online technical support and troubleshooting. If you choose to correspond with us through electronic communication (e.g., email, online chat or instant messaging), we may retain a copy of the electronic communication together with your email address and our responses. We provide the same protections for these electronic communications that we employ in the maintenance of information received by mail and telephone.
Both Personal Information and Non-Personally Identifiable information may be transferred to a third party:
- Partner or affiliates within our partner network that process personal data for customer service, marketing, technical support and operations and account management purposes;
- Our contracted service providers such as Microsoft or Pythian Data that process Personal Data on our behalf for IT and system administration and hosting, research and analytics, or customer support purposes;
- As required by law, in a matter of public safety or policy, or as compelled by a court of law
If you don’t want to receive promotional materials from our marketing department, you may opt out at any time. You may “opt-out” by clicking on the box marked “Please remove me from future communication” (Name and address of company)” when you register for an account or at any time afterward by contacting them directly. If you don’t get a timely response from them, please contact us at email@example.com. When properly opting-out, our clients should take reasonable efforts to delete a user’s Information from its database. However, please note that it may be impossible to entirely delete a user’s Information because some residual information may reside on backups or records of deletions.
How We Protect Your Information
ClickPoint has employed the use of electronic security measures to protect against the loss, theft, misuse, alteration, or unauthorized disclosure of your information submitted to our website. These measures include firewalls, use of passwords, anti-virus, and detection software.
When we ask customers or users to provide financial information (such as a credit card number) that data is protected using Secure Sockets Layer (“SSL”) technology. However, please note that electronic communication (e.g., email, online chat or instant messaging) that you may send to us may not be secure unless we advise you in advance that security measures will be in place before your transmitting the information. For that reason, we ask that you do not send confidential information such as financial information, social security numbers or passwords to us through unsecured electronic communication.
Content Placed in Public
Some pages of ClickPoint customers websites may make instant messaging available to you. Please remember that any information disclosed in these areas is public. You should exercise caution when disclosing Personal Information in these areas. Don’t disclose information in these solutions that might be considered confidential and such as financial information, social security numbers, or passwords.
You represent and warrant that posting content to any public area of ClickPoint clients’ websites will not infringe or violate the rights, including but not limited to intellectual property rights, such as copyrights, patents, trademarks and trade secrets and rights of privacy and publicity of any third party.
Transfer of Data Abroad
Access to Your Information and Correction of Inaccuracies
If you wish to access and/or update the Personal Information that has been collected from you, you may either a) as a registered user, log onto the ClickPoint client website and view or change your information online or b) contact them directly at the address they provide on their site or c) contact us at info@ClickPointSoftware.com. Personal information may reside on our servers for up to seven years and no less than two years.
14362 N. Frank Lloyd Wright Blvd. #1000
Scottsdale, AZ 85260 United States