Terms And Conditions
Press’nXPress General Terms and Conditions
EFFECTIVE OCTOBER 1, 2019
I. General Provisions
1. Scope of Validity
- These Terms and Conditions (“Terms”) shall govern the order of Goods and Services (as defined below) by a client (“Client”) and are applicable to all orders (“Orders”) for Goods and Services that reference these Terms. The Client represents that it has the legal capacity and authority to enter into these Terms. No Client terms or conditions will modify, deviate from, or contradict, these Terms unless the parties have expressly agreed in writing. As used in these Terms, “Press’nXPress” means the legal entity specified in the Order with the Client, including such entity’s affiliates.
- These terms and conditions may be revised or updated at any time without notice. The current version of these terms and conditions can be found at https://pressnxpress.com/terms-and-conditions/
2. Goods and Services
- Press’nXPress goods and services include: i) hardware and related software products that measure customer satisfaction or employee engagement, such as Smiley feedback terminal, digital widget and feedback chips (such products hereinafter called the “Feedback Collectors”), ii) licenses to the information and data recorded by the Feedback Collectors (hereinafter called “Data & Insights”), including services related thereto, and iii) customization services related to the Feedback Collectors and Data & Insights (hereinafter called “Customization Services”, and together with the Feedback Collectors, Data& Insights licenses and related services, collectively referred to as the “Goods and Services”). The specific Goods and Services Client has ordered will be set forth in the applicable Order.
- Press’nXPress shall provide the Goods and Services to the Client substantially as set out in the Agreement. The Goods and Services are provided “as-is”, unless separately agreed between the Parties in writing.
- Service Extensions or Updates. Client agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Goods and Services, and or any new Goods and Services subsequently Ordered by Client pursuant to an amendment accepted by Press’nXPress referencing this Agreement will be subject to this Agreement.
3. Binding Contract
- These Terms and an executed Offer represent the full and complete terms and conditions governing the Client’s order of Press’nXPress’s Goods and Services and are binding on the Client upon their execution of the Purchase Order.
- This Article I (General Terms and Conditions) shall apply to all Goods and Services ordered by Client. Article II (Terms Regarding Feedback Collectors), and Article III (Terms Regarding Licenses to Data & Insights) will apply only to the types of Goods and Services referenced in the applicable Article.
4. Fees, Payments and Orders
- The Fees for the Services have been set out in the Purchase Order. Any Services, not expressly defined in the Purchase Order as being included in the Fees shall be charged in accordance with the Press’nXPress price list as in force from time to time.
- All prices and fees set forth in the Purchase Order exclude VAT, sales tax, use tax and similar taxes, and Client agrees to pay any such taxes that may be applicable.
- Fees for the use of the Goods and Services shall be invoiced in advance for the applicable invoicing term, which shall be twelve (12) months unless agreed to the contrary in the Purchase Order.
- Payment for the total value of the invoice should be made within the terms specified on the invoice. Payment of fees must be made solely to the account specified in the Order and applicable invoice(s). There are no discounts for early or punctual payment.
- If Client site visits are required in order to design the solution or/and perform physical installation additional charges including travel expenses and related costs may apply and Client will be invoiced accordingly by Press’nXPress, provided that Press’nXPress shall be required to have all travel and lodging costs approved by Client prior to being incurred. Press’nXPress shall invoice Client for costs initiated to visit Client site to design and/or install the solution and Client shall pay the charges within fifteen (15) days of invoice date.
- Unless otherwise agreed, invoices must be settled within fifteen (15) days of issue. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
- The Client will be sent their invoice(s) by e‐mail free of charge. Clients can be sent a printed invoice on request for a fee. Invoices will be sent to the billing address given in the relevant Order.
- Press’nXPress reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). This is justified due to the general increase of costs and expenses of production (such as but not limited to general increase of labor costs and expenses), or in the case of increase of costs of third party offerings. In such a case the Client shall have the right to terminate the Agreement subject to thirty (30) days prior written notice.
- If Client believes that Press’nXPress has billed Client incorrectly, Client must contact Press’nXPress no later than 45 days after the date on the billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Press’nXPress’s customer support department firstname.lastname@example.org.
5. Intellectual Property
- Press’nXPress owns the intellectual property rights in the Feedback Collectors and the Data & Insights, as well as all of its methodologies, software, data, algorithms, designs, tools, charts, models, compilations, presentations, text, graphics, logos, icons and sound recordings, services, tradenames and trademarks, including Press’nXPress and Press’nXPress (collectively, “Press’nXPress IP”). Press’nXPress IP is protected by intellectual property laws. Client shall not commit or permit any act or omission that would impair Press’nXPress’s proprietary and intellectual property rights in Press’nXPress IP. All of Client’s rights to use any Press’nXPress IP are expressly stated herein; there are no implied rights, and Press’nXPress reserves all rights not expressly granted to Client. Client shall not use any Press’nXPress IP or share Press’nXPress IP with any third parties unless expressly permitted by these Terms.
- Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the hardware, Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Press’nXPress or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
6. Confidentiality & Proprietary Rights
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Press’nXPress IP, the contents of the Order, including pricing, and any confidential information or knowledge Press’nXPress shares during a pilot or while providing the Goods and Services shall be considered Press’nXPress’s Confidential Information. Proprietary Information of Press’nXPress includes non-public information regarding features, functionality and performance of the Good and Services. Proprietary Information of Client includes non-public data provided by Client to Press’nXPress to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that Confidential Information will not be deemed to include information that (i) is or becomes known to the public through no fault of the Receiving Party; (ii) is already known to the Receiving Party prior to its receipt hereunder or becomes known to the Receiving Party from a third party who has a lawful right to disclose the information; or (iii) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party or (iv) is required to be disclosed by law.
- The Receiving Party shall use at least the same degree of care in safeguarding Confidential Information as it uses for its own information of like importance, but in no event less than a reasonable standard of care. Without the prior written consent of the Disclosing Party, the Receiving Party will not disclose Confidential Information to any other person (including in any request for proposals, tenders, or similar process), except to its employees who have a need to know with respect to the Goods and Services and who are subject to confidentiality obligations with respect to such Confidential Information at least as restrictive as those contained herein. If the Disclosing Party gives consent for the Receiving Party to share Confidential Information to a third party, then the Receiving Party shall ensure such third party has signed a confidentiality agreement as restrictive as the terms herein and the Receiving Party shall be responsible for any breach of confidentiality by such third parties. The Receiving Party shall not copy or reproduce any Confidential Information unless it is strictly necessary to provide or receive the Goods and Services. Upon the request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information of the Disclosing Party (including copies thereof) in its possession or under its control. Neither party shall be liable for disclosure of Confidential Information if such disclosure is required to comply with applicable laws, governmental regulations or judicial or governmental orders, provided that the Receiving Party provides prior written notice of such disclosure to the Disclosing Party (if allowed by law), takes reasonable and lawful actions to avoid or minimize the extent of such disclosure and takes reasonable steps to assist the Disclosing Party (at the Disclosing Party’s expense) in contesting any such disclosure requirement. All Confidential Information will remain the property of the Disclosing Party, except to the extent that any rights with respect to such Confidential Information are expressly granted to the Receiving Party pursuant to these Terms. Each party acknowledges that its breach of this section may cause irreparable damage and hereby agrees that the other party shall be entitled to seek injunctive relief in the event of such a breach, as well as such further relief as may be granted by a court of competent jurisdiction.
- Client shall own all right, title and interest of its own Client Data. Press’nXPress shall own and retain all right, title and interest in and to (i) the Hardware, Services and Software, all improvements, enhancements or modifications thereto, (ii) any hardware, software, applications, inventions or other technology developed in connection with Implementation Services or support, (iii) further trends, business intelligence and market insights derived from data anonymously, and (iv) all intellectual property rights related to any of the foregoing.
- Client agrees to immediately inform Press’nXPress if Client becomes aware of any loss or theft or unauthorized use of any of Press’nXPress’s hardware (feedback collectors), software or any kind of data, and/or any of Client’s passwords, user names, and/or account number. The foregoing shall also apply to any Purchase Order Forms submitted by the Client for additional User licenses.
- Press’nXPress shall have the rights to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Press’nXPress will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Press’nXPress offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Client is responsible to inform and agree about confidentiality and property rights with a third party to whom the Client is providing a service and using Press’nXPress’s solution as part of that service.
- Client warrants that any content that may uploaded to Press’nXPress does not contain anything which breaches any obligations of confidentiality or proprietary rights of any third party and that Client own or licenses any intellectual property rights in such content.
7. Limitation of Liability
- Notwithstanding anything to the contrary, Press’nXPress and its suppliers (including but not limited to all equipment and technology suppliers), directors, officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (i) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (ii) for any indirect, exemplary, incidental, special or consequential damages, death or personal injury; or (iii) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Client to Press’nXPress for the services under this agreement in the 3 months prior to the act that gave rise to the liability, in each case, whether or not Press’nXPress has been advised of the possibility of such damages. Notwithstanding the forgoing or anything else set forth herein to the contrary, the terms and limitations set forth in this Section shall not apply to any damages caused by a breach of either party’s confidentiality obligations or any damages awarded a third party and covered by either party’s indemnity obligations set forth herein.
- Notwithstanding anything to the contrary, Client and its officers, affiliates, representatives and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory, for any indirect, exemplary, incidental, special or consequential damages.
- Press’nXPress may use third party suppliers to provide necessary hardware, software, networking, connectivity, storage and related technology required to provide Goods and Services. The acts and omissions of those third-party suppliers may be outside of our control, and Press’nXPress does not accept any liability for any loss or damage suffered as a result of any act or omission of any third-party supplier.
8. Indemnity Obligations
- To the fullest extent allowed by law, Press’nXPress will indemnify, defend at its own expense, and hold Client and its affiliates harmless, from any damages, costs, claims or other liabilities relating to any action brought against Client or any affiliate of Client, to the extent it is based on a claim that the Services or Platform used within the scope of the license granted hereunder infringe a patent, copyright or other proprietary right of a third party. Client shall notify Press’nXPress promptly in writing of any such claim, provided that failure to promptly notify Press’nXPress of any claim shall only relieve Press’nXPress of its indemnity and defense obligations hereunder to the extent such failure materially prejudices Press’nXPress’s ability to defend against such claim. Press’nXPress shall control the defense and/or settlement of such claim, provided that Press’nXPress shall have no authority to settle any claim that requires any admission of guilt or wrongdoing by Client or does not fully absolve Client of the infringement allegation.
- To the fullest extent allowed by law, Client will indemnify, defend at its own expense, and hold Press’nXPress and its affiliates harmless, from any damages, costs, claims or other liabilities relating to any action brought against Press’nXPress or any affiliate of Press’nXPress, to the extent it is based on a claim that any Client Data uploaded to or stored on the Platform by the Client or transmitted by the Platform at the instigation of the Client infringes a patent, copyright or other proprietary right of a third party. Press’nXPress shall notify Client promptly in writing of any such claim, provided that failure to promptly notify Client of any claim shall only relieve Client of its indemnity and defense obligations hereunder to the extent such failure materially prejudices Client’s ability to defend against such claim. Client shall control the defense and/or settlement of such claim, provided that Client shall have no authority to settle any claim that requires any admission of guilt or wrongdoing by Press’nXPress or does not fully absolve Press’nXPress of the infringement allegation.
9. Term and Termination
- Press’nXPress recognizes that the Client may suggest delivery dates in orders for Goods and Services. Press’nXPress will try to meet suggested delivery dates; but cannot, and do not, guarantee to deliver Goods and Services by any particular date. Press’nXPress accepts no liability for any loss or damage the Client may suffer as a result of Press’nXPress ‘s failure to deliver Goods and Services on or by a particular date.
- The Agreement shall enter into force on the date set out in the Purchase Order.
- An Order may be terminated by either party if the other party commits a material breach of these Terms which is not remediable, or, where the breach is capable of remedy, such breach is not remedied within 30 days after being required by written notice to do so.
- Either party may terminate this Agreement by giving to the other party 30 days written notice of termination by sending an email to email@example.com.
- Upon the termination of the Agreement, any Fees owed by the Press’nXPress for any Services provided until the effective date of the termination shall become immediately due. All Fees are non-refundable.
- Press’nXPress may terminate its relationship with Client, or may terminate or suspend the accessibility to Press’nXPress’s Data & Insight Platform and/or Services at any time, including the use of any software, (i) if Client breach these Terms and/or any other agreement with Press’nXPress; (ii) if Press’nXPress reasonably suspects that Client is using the Data & Insight Platform, Feedback Collectors, and/or Services to breach the law or infringe third party rights; (iii) if Press’nXPress reasonably suspects that Client is trying to unfairly exploit or misuse Press’nXPress’s policies; (iv) if Press’nXPress reasonably suspects that Client is using the Data & Insight Platform, Feedback Collectors, and/or Services fraudulently, or that Data & Insight Platform, Feedback Collectors, and/or Services provided to Client are being used by a third party fraudulently; (v) if Client fails to pay any amounts due to Press’nXPress; (vi) Client violates any applicable law or regulation. Upon termination of Client account and service for the above reasons, there will be no refund of fees and Client will be denied access to the Data & Insight Platform, Feedback Collectors, and/or the Services, including all of its data.
- Press’nXPress may terminate any agreement and access to Client account, if the Data & Insight Platform, Feedback Collectors, and/or Services or any part thereof, are no longer legally available in Client’s jurisdiction, or are no longer commercially viable, at Press’nXPress’s sole discretion.
- In case of termination or closing of Client account by Client because of a material breach by Press’nXPress, without any default by Client, or in case of a force majeure on the side of Press’nXPress, Press’nXPress will refund pro rata for the remaining period of Client subscription any fees or expenses paid by Client.
- If Client believes that Press’nXPress has failed to perform or the Data & Insight Platform or Feedback Collectors are defective, Client must notify Press’nXPress in writing and allow thirty (30) days for Press’nXPress to cure the defect. If Press’nXPress cures the defect within this cure period, Press’nXPress will not be in default and cannot be held liable for any damages and/or losses in connection to such default. If Press’nXPress has not cured the defect within this cure period, Client may terminate the subscription with immediate effect, upon written notice to Press’nXPress at firstname.lastname@example.org
10. Support Services
- Press’nXPress offers support Services as regards technical support of the goods and services ordered by client. Such support is available via e-mail, using the contact information email@example.com. Press’nXPress shall use its reasonable efforts to reply to e-mails without undue delay, but does not commit to any particular service levels. Support is not available during weekends and public holidays. Emails received outside of office hours will be collected and best efforts will be made to answer
- The Client may use the support channels [for the purposes of requesting and, where applicable, receiving the Support Services]; and the Client must not use the Client support channels for any other purpose unless mentioned in service agreement.
- Press’nXPress also offers “for fee” extended support options and Professional Services consultation, which services may include, among other things, training services, business consulting, and system integration and configuration. Press’nXPress shall provide a written quote for the cost of any such services prior to performing the services. Remuneration for extended support options and Professional Services is due and payable in accordance with the payment terms set forth in the Order.
- Change requests from Client shall also be submitted to Press’nXPress through support channel.
- Press’nXPress may direct the Client towards a third party partner as regards first line support.
11. Pilot Services
- The terms under Pilot clause will apply to any purchase order of Pilot Services from Press’nXPress.
- The Client will be provided with details of Press’nXPress Pilot Services and any additional terms and conditions that may apply, when an order is placed.
- The Client is responsible for checking, or arranging checks of the Pilot Goods and Services on delivery.
- For any Pilot Services ordered, the Client must ensure (i) Press’nXPress is notified immediately of any defects in, damage to or loss of the Goods after delivery; (ii) The Goods are used only in accordance with the provided instructions and that it is properly maintained and insured against all risks during the course of Pilot; (iii) No modifications are made to the Pilot Goods, it is not disposed of, or possession passed on, except where expressly agreed with Press’nXPress in advance; (iv)The Pilot Goods is returned in the same condition it was delivered in (normal wear and tear excepted) to an address advised by Press’nXPress by the date specified in the relevant Pilot Purchase Order or Agreement.
- Press’nXPress may cancel an order for Pilot Services, without prejudice to the Client’s responsibilities and liabilities under such contract if: a) payment is not received in time for such Services; b) Press’nXPress has grounds to believe that the Pilot Goods are in jeopardy; c) the Client is in breach of any provision of these terms and fails to remedy such breach within 7 days of its occurrence; d) and/or the Pilot Goods are seriously damaged or destroyed.
- If the Client wishes to cancel an order for Pilot Services, they must do so by giving Press’nXPress written notice of such cancellation and no refund will apply. On cancellation of an order for Pilot Services, the Client must immediately pay the Press’nXPress any arrears and all future sums due under the remaining term of the agreement.
- Any costs incurred for third party services and goods, and any expenses incurred or loss suffered as a result of the cancellation shall be invoiced to the Client.
- At the end of pilot period, Client is responsible to return the goods to Press’nXPress on agreed destination. All the costs associated to shipping and handling for return should be paid by Client.
- At the end of pilot period, for any goods not returned to an agreed destination and/or on an agreed date, Press’nXPress reserves the right to charge the daily equivalent rental charge until such time that the Goods are fully returned/collected.
- Lost and damaged Goods will be charged as follows: XPressCast $300 each, Stand $80 each, Tablet $120 each. All prices are exclusive of applicable VAT.
- Client agrees to provide Press’nXPress with Client’s users e-mail address (es), and to accept emails (or other Electronic Communications) from Press’nXPress at the e-mail address Client specifies. Notwithstanding any provision in the Agreement to the contrary, acknowledgement by an officer of Client is not required with respect to e-mail communications pertaining to the Client’s routine use of the Service, including without limitation communications relating to the support, maintenance, or the updating of the Service. Client further agrees the Press’nXPress may provide any and all required notices including legal notices to Client.
- Press’nXPress may use the Client’s name, logo, and Client’s commercial description as part of a list of customers and may refer to Client as a user of its Services in Press’nXPress’s advertising and marketing activities as a reference and Client further agrees to participate in other marketing activities which may include but not be limited to writing references and case studies, and participation in Press’nXPress sponsored webinars. Each Party shall obtain the other Party’s permission, not to be unreasonably withheld, prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between Press’nXPress and Client and will be issued only upon mutual agreement of the Parties.
- The Terms are intended to create an independent contractor relationship between the parties and it will not be construed to create any employment relationship, partnership, joint venture, or agency relationship between the parties or to authorize either party to enter into any commitment or agreement binding on the other.
- Governing Law. The rights and obligations arising under this Agreement shall be governed by and construed in accordance with the laws applicable in the Province of Ontario, Canada, other than those dealing with conflicts of law and the parties shall attorn to the exclusive jurisdiction of the Ontario courts for any and all matters which may arise in respect of this Agreement. If any provision of these Terms is found by a court or other competent authority to be invalid, unenforceable or in conflict with the law, that provision is limited or eliminated to the minimum extent so that these Terms otherwise remain in full effect.
- If Press’nXPress do not exercise or enforce any right available to Press’nXPress under these Terms, it does not constitute a waiver of those rights. Should any provision herein become null and void or unenforceable, then the remainder of these Terms shall not be affected. The parties hereto undertake to replace any such provision with a legally permissible one that comes as close as legally possible to the original intent of the parties.
- Neither party may assign these Terms or an Order, either in whole or in part, without the prior written consent of the other party, except that either party may make an assignment as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets.
- Any provisions in these Terms that by their nature are intended to survive expiration or termination of the Terms shall survive such expiration or termination for any reason.
II. Terms Regarding Feedback Collectors
- The terms in this Article II shall apply to Client’s order of Feedback Collectors.
2. Feedback Collectors
- Client agrees to order, and Press’nXPress agrees to provide, the quantity and types of Feedback Collectors set forth in the Order pursuant to the payment terms therein. Client will have the rights to use the Feedback Collectors upon payment in full, subject to the conditions, restrictions and limitations herein.
- Unless otherwise agreed to in an Order, the Client will be solely responsible for the installation of the Feedback Collectors on its premises.
- It is the sole responsibility of Client to ensure that the digital widgets are deployed to the Client’s website or App and installed according to Press’nXPress installation instructions.
- Each feedback collector widget for digital touchpoints is unique and shall not be duplicated or installed on multiple touchpoints. If the Client wishes to measure satisfaction on multiple touchpoints, the Client must order the appropriate number of feedback collector widgets.
- The feedback terminal is supplied ready for use. The terminal contains a transceiver module for sending and receiving information. In order to use the Service, the feedback terminals need to connect to internet through mobile network of specific operator; hence, there should be available network coverage in the spot of installed terminal. The Client is responsible for ensuring that the necessary, network, data and telecommunication systems which feedback terminal require (cellular network signal or Wi-Fi) are available. Press’nXPress is not liable for any issues arising as a result of third party carrier network providers or Client’s Wi-Fi availability.
- The feedback collector widget includes an identifier (token) that is used to identify touchpoint on the report.
- The Client’s contact person at the location where the feedback collectors is in operation is responsible for checking and confirming the functioning of a feedback collector, as well as providing certain information upon the request of the Press’nXPress (e.g., serial number in the bottom of the terminal) when Client receives the feedback terminals or when Client contacts Press’nXPress support team.
- Press’nXPress grants the Client a non-transferable, non-exclusive, worldwide license to utilize the software incorporated in any Feedback Collector for the purposes of using the Feedback Collector as intended. This limited license to use the software is not a grant or transfer of ownership in the intellectual property of the Feedback Collector and Press’nXPress maintains ownership of all intellectual property rights associated with the Feedback Collector.
- The Client may not reverse engineer, deconstruct, modify or copy the programming or the functions of any Feedback Collector. The Client may not open the terminal or tamper with it in any way unless otherwise instructed by Press’nXPress.
- The Client shall, depending on the terminal model, be responsible for connecting the charger to the power outlet.
- The Client may not sell, lease, rent, loan, distribute or transfer the Feedback Collector to any third party.
- Client is responsible for general care, cleaning and upkeep of the Feedback Collector.
3. Condition and Shipment Risk
- The risk of loss and damage to Feedback Collector passes to the Client when such goods are delivered to the Client’s premises. This applies regardless of which party pays shipping costs.
- Press’nXPress shall not be responsible for delays in shipping caused by inclement weather or other circumstances outside its control.
4. Unpaid Feedback Collector
- Press’nXPress reserves the right to take back Feedback Collector that has not been paid for in full if the Client breaches these Terms.
- The Client has a duty to treat any hardware and material supplied to the Client as the Feedback Collector with due care, including insuring such Feedback Collector at their own expense against fire, theft and water damage. Client is responsible for any damage caused to Feedback Collector. The Client must not pledge any Feedback Collector as collateral or securitization.
5. Feedback Collector Ownership
- Any hardware supplied to the Client as a Feedback Collector shall remain the property of the Press’nXPress and the Client shall after the expiry or termination of the Agreement at the Press’nXPress’s sole discretion recycle the hardware at the Client’s expense pursuant to the instructions provided by the Press’nXPress or return the hardware to the Press’nXPress at the Client’s expense no later than 30 days after end of Term or termination of this agreement.
- Upon the termination of the Agreement, the Client shall remove all digital feedback collector widgets from Client’s platform and devices promptly.
6. Limited Warranty
- Feedback Collector are guaranteed to be free of defects and perform in accordance with their specifications and the relevant documentation. In case a feedback terminal becomes non-functional, Press’nXPress shall replace the feedback terminal free of charge with a new one within thirty (30) days of the Client’s written request. If, however, Press’nXPress reasonably determines that the non-functionality of the feedback terminal is due to a reason attributable to the Client (or its end-customers), Press’nXPress reserves the right to charge the price of the new feedback terminal from the Client, as well as any shipping & handling costs caused by the replacement of the feedback terminal. For the avoidance of doubt, the replacement feedback terminal provided will always be the same model or the model that is currently being manufactured by Press’nXPress
- The warranty does not cover any claim for: i) defects that do not substantively affect the performance of the Feedback Collector, ii) minor deviations from the documentation or agreed upon specifications, iii) natural wear and tear, iv) damage due to negligent treatment or excessive strain or use, v) use with unapproved hardware, equipment, software, or media, vi) defective installation by Client, vii) theft, loss or vandalism, or viii) issues caused by external factors, such as issues with Client’s premises or other unusual external factors not reasonably foreseeable. If the Client or any third party makes repairs or modifications to the Feedback Collector, then the warranty herein is null and void.
- Client shall be responsible for any additional warranty servicing costs (including shipment, travel and labor) that results from the Feedback Collector.
- THE FOREGOING WARRANTY IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AS TO INFRINGEMENT.
7. Loss, Theft or Damage
- The risk of loss as regards the hardware shall pass to the Client once the hardware is in the Client’s possession. Once the Feedback Collector is in the Client’s possession, in case of any loss, theft, damage or destruction of Feedback Collector, Client will be charged for replacement feedback collector and will be considered as a new order.
- Lost and damaged Goods will be charged as follows: XPressCast $300 each, Stand $80 each, Tablet $120 each. All prices are exclusive of applicable VAT.
8. Display of Logo
- The ‘Press’nXPress’ logo and Smiley Faces are trademark of Press’nXPress and must be visible and unaltered on any Feedback Collector on the Client’s premises that are visible to the public.
III. Terms Regarding Data & Insight Platform
- The terms in this Article III shall apply to Client’s order of Data & Insight Platform services.
2. Data & Insight Platform
- Client agrees to order, and Press’nXPress agrees to provide, the Data & Insight Platform Services set forth in the Order pursuant to the payment terms therein. Client will have the rights to use the Data & Insight Platform and Services upon payment in full, subject to the conditions, restrictions and limitations herein.
- Press’nXPress grants the Client a non-transferable, non-exclusive, worldwide license to utilize the Data & Insight Platform Services for the purposes of using the Data & Insight Platform as intended. This limited license to use the software is not a grant or transfer of ownership in the intellectual property of the Data & Insight Platform and Press’nXPress maintains ownership of all intellectual property rights associated with the Data & Insight Platform.
- The Client may not reverse engineer, deconstruct, modify or copy the programming or the functions of Data & Insight Platform.
- The Client may not sell, lease, distribute or transfer the Data & Insight Platform license to any third party.
- The Client and all their authorized users shall use reasonable endeavors, including reasonable security measures relating to User Account access details, to ensure that no unauthorized person may gain access to the provided Data & Insight Platform and Services.
- The Client and all their authorized users are responsible for all actions or omissions performed using its user account.
- Client understands that the technical processing and transmission of customer feedback data is fundamentally necessary to Client’s use of the Service. Client expressly consents to Press’nXPress’s interception and storage of Electronic Communications and/or Customer Data, and Client acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Press’nXPress Client acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Client agrees that Press’nXPress is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Press’nXPress
- Client is solely responsible for obtaining all licenses and permissions necessary related to collection and use of the Client’s Customer Data.
- To the extent the Client and Client’s Customers submit data including personal data to be processed or stored in Data & Insight Platform, Press’nXPress (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Client while the Client remains at all times the data controller for such personal data. Press’nXPress processes data submitted by the Client or Client’s Customers to the Press’nXPress in accordance with the applicable laws, decrees and regulations. The Client represents and warrants that it is authorized to instruct Press’nXPress and its subcontractors to process such data. The Client represents and warrants that it has the right to collect the data provided to Press’nXPress for processing.
- Press’nXPress will create the Admin user for the Client and shall provide the login details for the admin user to the Client (or the Client can create the user accounts following the instruction manual from Press’nXPress).
- Client may designate up to the number of Users that corresponds to the number of permitted Licenses set forth in the contract. Client will provide and assign unique usernames to each authorized User for each license purchased. Client acknowledges and agrees that Client is prohibited from sharing passwords and or usernames with unauthorized users. Client will be responsible for the confidentiality and use of Client’s (including its employees’) passwords and usernames. Client will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Client Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Client’s account. Press’nXPress will act as though any Electronic Communications it receives under Client’s passwords, username, and/or account number will have been sent by Client.
- The Press’nXPress will provide manual and user guides to Client in order to configure and use the platform.
- Press’nXPress shall use reasonable endeavors to maintain the availability of the Data & Insight Platform and Services to the Client, but does not guarantee 100% availability.
4. Maintenance and Update
- Press’nXPress reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Client on which the Client materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Press’nXPress shall use commercially reasonable efforts to notify Client prior to any such modification; further, Press’nXPress shall consider the Client’s validation needs and requirements in connection with any modification of the Service.
- In order to perform maintenance, including infrastructure and application upgrades, there will be planned work scheduled down time. Such planned work will be communicated to the Client in advance. Client shall give Press’nXPress one (1) week notice in the event that such routinely schedule maintenance conflicts with its operations at a critical time. Upon the receipt of such notice, the parties shall work together to find a mutually convenient time to perform such maintenance. Press’nXPress further reserves the right on approximately a quarterly basis to issue new releases in which Press’nXPress adds functionality to the Service. The time necessary to provide such periodic releases shall not be counted in any System Availability calculations.
- In the event that Press’nXPress, in its sole discretion, determines that any unscheduled maintenance is necessary, Press’nXPress will use commercially reasonable efforts to notify Client as soon as it becomes aware of such need.
5. Limited Warranty and Disclaimer
- Press’nXPress shall use reasonable efforts consistent with prevailing industry standards to maintain the Data & Insight Platform and Services in a manner which minimizes errors and interruptions in the Services.
- Press’nXPress does not warrant that the Data & Insight Platform and Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Data & Insight Platform and Services.
- Data & Insight Platform and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Press’nXPress or by third-party Press’nXPresss (such as cloud Press’nXPress), or because of other causes beyond Press’nXPress’s reasonable control, but Press’nXPress shall use reasonable efforts to provide advance notice in writing or by e-mail to Client of any scheduled service disruption.
- To the maximum extent permitted by law Press’nXPress disclaims and excludes all implied conditions and warranties. To avoid doubt, Press’nXPress does not warrant that: (a) Press’nXPress will meet Client’s specific requirements; (b) Press’nXPress will be uninterrupted, timely, secure, or error free; (c) the results that may be obtained from the use of Press’nXPress Services will be accurate or reliable; (d) the quality of any products, services, information or other material ordered or obtained by Client through Press’nXPress will meet Client expectations; or (e) any errors in Press’nXPress will be corrected.
- All Client’s and Customer Data data and content may be deleted from our systems immediately upon cancellation or at the expiry of Agreement without any liability towards the Client. This content cannot be recovered once your account is cancelled. We are not liable for any loss or damage following, or as a result of, the cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.
- Press’nXPress may suspend the provision of the Services if any amount due to be paid by the Client to the Press’nXPress under this Agreement is overdue, and the Press’nXPress has given to the Customer at least 14 days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis. The suspension can be continued until the Client has paid all Fees due under the Agreement.
- Press’nXPress shall have the right to suspend the provision of the Services and to deny the Client’s access to the Services without first hearing the Client, without any liability towards the Client, if Press’nXPress reasonably suspects that the Client burdens or uses the Services contrary to the Agreement, applicable laws or administrative orders or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Services to other users.