The following Standard Terms and Conditions (hereinafter: the “Terms and Conditions”) govern the provision of video conferencing services(hereinafter: the “Services”) and certain equipment (hereinafter: the “Equipment”), which includes the use of any and all licenses granted to your company (hereinafter: the “Customer”) relevant to the use of the video conferencing services by:
a. where the Customer is based in the United Kingdom: BCS Global Networks Limited;
b. where the Customer is based in Canada: BCS Global Networks Inc.;
c. where the Customer is based in the US or rest of world: Video Guidance.com, Incorporated,
each acting on its own behalf and/or on behalf of any of its affiliates or subsidiaries, collectively doing business as Pinnaca® (hereinafter: “Pinnaca”).
Any order or request (each an “Order”) by the Customer to purchase the equipment and/or Services constitutes an offer to enter into an agreement incorporating these Terms and Conditions. All Orders are accepted by Pinnaca on these Terms and Conditions and on no others. These Terms and Conditions, which supersede any earlier sets of conditions issued as published by Pinnaca, override and exclude any other terms and conditions stipulated or referred to by the Customer and any course of dealing established between Pinnaca and the Customer.
The Order shall only be deemed to be accepted when Pinnaca issues written acceptance of the Order, on which date an Agreement consisting of these Terms and Conditions and the Order shall come into existence. During the term of the Agreement, the Customer may purchase additional Services and/or Equipment.
By using the Services and receipt of the Equipment, the Customer agrees to be bound by these Terms and Conditions to the exclusion of any terms agreed on previously. Should the Customer not unconditionally agree to all of the Terms and Conditions herein, then Customer shall not use (and has no right to use) the Services and/or any Equipment. Any subsequent Purchase Order issued by the Customer under the Agreement shall only be issued for billing purposes and shall be governed by the Agreement, unless specified otherwise on the Sales Order Form (hereinafter: the “Order Form”). For greater clarity: any additional terms and conditions referenced in the Customer’s Purchase Order are hereby rejected by Pinnaca and shall not legally bind Pinnaca in any way for the duration of the Order term or for the duration of the Agreement, respectively.
1. Agreement for Services and Equipment – In consideration of the Customer’s payment of the fees in accordance with clause 7, Pinnaca shall use commercially reasonable efforts to provide the Services, Equipment, installation and support thereof in accordance with these Terms and Conditions and the additional terms for the applicable equipment and Services as set out under www.pinnaca.com/terms.
2. Scope of Service – Pinnaca provides the Service as described in more detail in the Order Form attached hereto, which forms part of the Agreement. Any subsequent Order relevant to the Services provided by the Customer to Pinnaca will be governed by the Terms and Conditions stipulated herein. Pinnaca does not guarantee any accessibility or performance levels, capacity and scalability needs of the Services, or of any data, that leaves the Pinnaca Network and/or travels through or utilizes the public Internet. The Customer acknowledges that the public Internet is a public and un-secure domain and that Pinnaca does not control or monitor the transfer of data, and does not accept responsibility for throughput, levels of performance, capacity, or scalability needs.
3. Customer’s Equipment
a. The Customer ensures that its video conferencing screens, hardware, software and operating environment (hereinafter: the “Environment”), or that of its customer(s), respectively, are compatible with the requirements set out by Pinnaca for the access and use of the Services, in order to enable Pinnaca to provide technical support for said Environment. Notwithstanding any Pinnaca recommendations, Pinnaca accepts no liability for the performance of such Environment where it is managed by the Customer.
b. From time to time, the requirements for the access and use of the Services may change. Accordingly, the Customer’s Environment may cease to be adequate to access and use the Services. In such event, the Customer may:
i. upgrade its hardware/software and/or operating environment (at its expense) to the minimum requirements as set out by Pinnaca; or
ii. continue to use the Services with its existing hardware/software and/or operating environment acknowledging such environment’s limitations to interface with the Services, in which case of Pinnaca does not accept liability for malfunction of the Services; or
iii. terminate the Services subject to compensating Pinnaca for any cost it may incur resulting from such termination in addition to the average monthly application charges for the terminated Services (as determined over the previous three months), multiplied by the number of months remaining in the existing term, calculated from the effective date of termination.
4. Operations Procedures – The Customer and Pinnaca shall comply with the operations and escalation procedures as described at http://pinnaca.com/terms.htm.
5. Product Specifications and Deliverables – The Customer and Pinnaca shall comply with the Product Deliverables as described at http://pinnaca.com/serviceterms.htm.
6. Term – The term of the Agreement and any subsequent Order submitted by the Customer under the Agreement shall commence (a) on the date when the Services have been activated; or (b) as mutually agreed on between Parties and specified on the Order, and will continue for the period as specified on the Order (hereinafter: the “Initial Term”). For the purpose of the Agreement, ‘activation’ is deemed to have taken place when the Customer has been granted access to Pinnaca’s network and thereby has been enabled to use the Services. UNLESS OTHERWISE EXPRESSLY AGREED PRIOR BETWEEN THE PARTIES, THE TERM WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR TERMS, EACH A “RENEWAL TERM”, ON THE SAME TERMS AND CONDITIONS AS APPLICABLE DURING THE CURRENT TERM UNLESS EITHER PARTY GIVES THE OTHER PARTY WRITTEN NOTICE OF AT LEAST SEVENTY–FIVE (75) DAYS PRIOR TO THE EXPIRY OF THE CURRENT TERM THAT IT DOES NOT WISH TO RENEW THE CONTRACT. The Customer expressly acknowledges that its non-usage of the Services for whichever reason does not affect the Term or validity of the Agreement until the Customer has served Pinnaca with Notice of Termination as specified in clause 11 below, and Pinnaca has confirmed the effective date of the Customer’s termination. For greater clarity, in the event that the Customer elects to not use the Services, but fails to terminate the Agreement, or a subsequent Order, or any part thereof, accordingly, the Customer shall remain obligated to comply with its payment obligations as stipulated in clause 4 below.
a. The Customer shall pay Pinnaca the fees for the Equipment and Services calculated in accordance with the fees set out on the Order Form. Additional ad-hoc charges, including, but not limited to, for pay-per-use-services such as long distance charges to and from sites not on the Pinnaca Network, video ISDN inbound bridge port fees, applicable (re-)certification fees, decommissioning fees, and charges for any third party services provisioned by Pinnaca on behalf of the Customer may apply.
b. Pinnaca shall invoice the Customer on a monthly in advance basis for all Services to be incurred during the immediately following month at the rates specified in the Agreement. Equipment charges will be invoiced upon shipment of Equipment. Charges for installation of Services will be invoiced on the service completion date.
c. All invoices shall be due and payable within thirty (30) days of the date of the invoice. Amounts invoiced but not paid by the Customer within the specified time period of thirty (30) days will be subject to a late payment charge equal to the greater of 1.5% above the Bank of England base rate from time to time or the highest amount allowable by law. Payment shall be made to Pinnaca at the address and the currency identified on the Signature Page to the Order. Pinnaca reserves the right to suspend the Service if an amount owing by the Customer to Pinnaca is delinquent for more than sixty (60) days from the date of said invoice. In the event that the Customer fails to submit payment of said invoice forthwith, but in any event no later than within five (5) days from receipt of any demand for payment notice from Pinnaca, Service will be discontinued.
d. The Customer shall pay all federal, state, and local taxes, surcharges, and fees (collectively, “Taxes”) incurred by Pinnaca in connection with the sale and delivery of the Services and/or the use of the Services provided to the Customer and the amount of such Taxes shall be added to the Customer’s invoices.
a. In these Terms and Conditions, “Confidential Information” means the confidential technical and business information, of each party including without limitation, information relating to inventions of software, research and development, future product specifications, engineering processes, network architecture, costs, profit or margin information, and marketing and business plans. “Confidential Information” does not include information which is or becomes publicly known otherwise than by reason of a breach of these Terms and Conditions or has been independently developed outside the scope of these Terms and Conditions.
b. Each party will use the other’s Confidential Information solely to fulfil its obligations under these Terms and Conditions. In the case of Pinnaca, this includes the ability to monitor and record the Customer’s transmissions in order to detect fraud, illegal activity, check quality, and to operate, maintain and repair the Service. The Customer understands that the content of a voice or video conference passes through Pinnaca’s multi-conference servers, but that none of the content is recorded, unless requested by the Customer or as may be required by law. Any request by the Customer to record conference content is subject to additional fees.
c. Neither party will disclose the other party’s Confidential Information except to: (a) employees, agents, contractors and Affiliates on a need-to-know basis, provided that such agents, contractors and Affiliates are not direct competitors of the disclosing party and agree in writing to use and disclosure restrictions as restrictive as those contained in this clause; or (b) to the extent required by law or requested by any governmental or regulatory authority, with prior advance written notice to the extent permitted by applicable law or regulation.
d. Upon termination of the Agreement Pinnaca will, upon request by Customer, provide Customer with a file containing the Confidential Information relevant to the Agreement which has been provided by Customer. Pinnaca shall have no obligation to maintain, or to provide to Customer, any such Confidential Information beyond sixty (60) days upon termination of the Agreement for whichever reason taking effect. Thereafter, unless legally prohibited, Pinnaca shall be entitled to delete all of Customer’s Confidential Information in its possession or under its control.
9. Protection of Personal Data
a. In the event that Pinnaca is required to release Personal Data relevant to it or its associates to the Customer, or to the Customer’s customer, respectively, in order to comply with the Customer’s or Customer’s customer(s)’ system access security requirements, the Customer shall, or shall ensure that its customer(s), at all times comply with any applicable data protection and data privacy legislation, and any mandatory regulations and/or bylaw made under or separate to such act (the “Legislation”) as well as with the requirements as directed by Pinnaca relevant to such Personal Data.
b. The Customer shall not store, copy, retransmit or use any Personal Data except for the purpose of the satisfaction of the Agreement and/or any subsequent Order. The Customer undertakes to ensure that appropriate technical and organizational measures are in place at the time of execution of the Agreement, its purpose being the prevention of unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to Personal Data. The Customer undertakes to implement and maintain a data protection policy in respect of the Personal Data in accordance with the Legislation. The Customer further undertakes to ensure the compliance with such data protection policy by its employees, agents and subcontractors at all times.
c. The Customer shall provide a copy of its data protection policy relating to the protection of personal data to Pinnaca and when said policy has been updated by Customer, and Customer shall revise and update, upon Pinnaca’s request, its technical and organizational measures in order to comply with Pinnaca’s current security policy.
d. The Customer undertakes to inform Pinnaca promptly in the event of any breach of the security policy which comes to its attention, and to provide Pinnaca with the Customer’s proposals to remedy the breach. The Customer undertakes to inform Pinnaca promptly in the event of any unauthorized or unlawful processing of Personal Data and in the event of any accidental loss, destruction or damage to the Personal Data and to provide Pinnaca with the Customer´s proposals to remedy the unauthorized or accidental event.
Processing of Personal Data:
e. Where Pinnaca will be processing Personal Data subject to EU Data Protection Law as a Data Processor on behalf of the Customer in the course of performance of its obligations under these Terms and Conditions, the parties shall enter into Pinnaca’s standard data processing agreement (the “DPA”) in respect of such processing of Personal Data by Pinnaca.
f. In relation to the performance of its obligations under these Terms and Conditions, each party shall comply with the provisions imposed on them by any DPA entered into between the parties. Where there is any conflict between the provisions of these Terms and Conditions and any such DPA, the provisions of the DPA shall prevail to the extent of any such inconsistency.
g. In this clause 9, the terms “Data Processor”, “EU Data Protection Law” and “Personal Data” shall have the meaning given to such terms in the DPA.
10. Ownership, Licenses, Customer Data – Pinnaca owns and shall retain all rights in the Services (including all Pinnaca-controlled infrastructures), Pinnaca’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. The Customer grants Pinnaca (and, where applicable, its third party contributors) during the term of the Agreement a non-exclusive, royalty-free, sub-licensable, license to use, reproduce, modify, publicly perform, publicly display and distribute the Customer Data for purposes of providing the Services hereunder. In addition, Pinnaca shall have the right, but not the obligation, to retain copies of the Customer Data for legal compliance purposes.
11. Prohibited Behavior – Subject to these Terms and Conditions, the Customer shall have the right to use the Service for any lawful purpose in furtherance of the Customer’s internal business operations, provided the Customer shall not, without the prior written consent of Pinnaca, directly or indirectly resell or transfer all or any part of the Service to any other party. The Customer agrees that it will not use Service(s) for any purpose other than that for which it is intended or in violation of any law or regulation. While using the Services, the Customer shall not, and, to the extent applicable, shall ensure that its customer(s) does/do not, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Pinnaca to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Pinnaca’s or third party contributor accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code; (ii) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right owned by Pinnaca or by a third party contributor to the Services; (iii) any activity that places Pinnaca in the position of fostering, or having liability for, illegal activity conducted by the Customer, or its customer(s) in any jurisdiction while using the Services; (iv) any activity that violates the acceptable use policy or similar set of terms of any third party service providers for third party services that have been made available to the Customer; or (v) attempting to probe, scan, penetrate or test the vulnerability of any Pinnaca system or network or to breach Pinnaca’s security or authentication measures, whether by passive or intrusive techniques. Pinnaca reserves the right to restrict, suspend or discontinue immediately the provision of the Services to the Customer if Pinnaca believes in good faith that the Customer, or its customer(s), respectively, or a user authorized by the Customer, or its customer(s) to use the Services engages in any of the foregoing activities.
12. Security – The Customer shall take all reasonable security precautions in connection with its use of the Services, or shall ensure that its customer(s) comply with this requirement accordingly. The Customer and/or its customer(s) respectively shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Services and shall change its passwords if required throughout the term. To the extent applicable, in the event that the Customer Application, or Customer’s Customer Application, respectively, is hacked into or otherwise accessed by a third party without authorization of the Customer, or the Customer’s customer(s) respectively, then Pinnaca may take the Customer Application, or the customer’s Customer Application, respectively, offline until Pinnaca determines that the intrusion is finally resolved.
13. Audit Rights
a. Each party shall keep and maintain throughout the term of the Agreement detailed, accurate and up to date records showing all payments made or received in connection with the Agreement. Each party shall ensure that such records and books of accounts are sufficient to enable the other party to verify compliance with the obligations under the Agreement.
b. Without prejudice to any audit rights provided to the parties under a DPA, during the Term, each party (the “Audited Party”)agrees to allow the other party, their representatives or professionally qualified independent auditors, on reasonable notice during normal business hours, but without notice in the event of any reasonably suspected breach of the Agreement, to access and take copies of all relevant records or information and to meet the Audited Party’s personnel in order to audit the Audited Party’s compliance with its obligations under the Agreement. The Audited Party shall give all necessary assistance to the conduct of any such audits. Each party shall bear their own costs and expenses in respect of the audits.
a. In the event that the Customer intends to terminate the Order, or any part thereof, seventy-five (75) days prior written notice must be given to Pinnaca strictly in accordance with clause 22 a) or b), respectively, and all monies owed by the Customer to Pinnaca as per clause 4 above shall become immediately due and payable to Pinnaca on the date the notice is served by the Customer. Any obligations and duties which by their nature extend beyond the termination of these Terms and Conditions shall survive any termination and remain in full force and effect.
b. If the Customer terminates the Agreement or cancels the Services for convenience, following installation or activation of the Services, the Customer shall pay to Pinnaca all amounts outstanding plus the monthly application charges for the remainder of the term and any costs that Pinnaca is liable to continue to pay to third parties for the remainder of the applicable term or renewal term.
c. Either party may, at its discretion, terminate the Service by written notice in the event the other party is in breach of these Terms and Conditions and is not able to remedy such a breach within thirty (30) days of a notice to remedy such a breach or adjudged bankrupt, or an administrator or a receiver is appointed on account of its insolvency.
15. Customer Indemnity – The Customer will indemnify and hold the Pinnaca Group and its officers harmless against any and all damages, liabilities, costs and expenses, including legal fees, suffered or incurred by Pinnaca Group relating to:
a. the Customer’s unlawful or improper use of the Service, Pinnaca’s equipment or the Customer’s equipment;
b. the Customer’s failure to comply with these Terms and Conditions;
c. property damage, personal injury or death claims caused by the Customer’s acts or omissions, or arising from the Customer’s use of the Service; and/or
d. the Customer’s or its users’ content transmitted through the Service, and such indemnifications shall extend to the actions of any individual who accesses the Service through the Customer’s account(s).
16. Indemnity – Each party to the Agreement shall defend, indemnify and hold harmless the other party for all damages and expenses (including reasonable attorneys’ fees) the other party may incur as a result of third party claims, to the extent such claims arise from the negligent acts or omissions of the indemnifying party, provided the party seeking indemnification promptly notifies the other party in writing of any such third party claim. The indemnifying party shall have sole control of the defense of such claim.
a. Professional Services- Pinnaca warrants that it will perform the Professional Services in a professional and business-like manner, and in accordance with accepted industry standards. In providing the Professional Services, Pinnaca will use diligent efforts to meet any service objectives specified in the applicable Order Form.
b. Pinnaca further warrants that the Services do not infringe on the intellectual property rights of any third party.
c. Pinnaca warrants that it has the right, power and authority to enter into the Agreement and provide the Services under the terms hereunder.
18. Disclaimer of Pinnaca’s Warranties – EXCEPT AS EXPRESSLY SPECIFIED OTHERWISE IN CLAUSE 17 OF THESE TERMS AND CONDITIONS, ALL SERVICES ARE PROVIDED “AS IS” AND PINNACA (FOR ITSELF, AND FOR ITS THIRD PARTY CONTRIBUTOR(S)) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEITHER PINNACA (NOR ANY OF ITS THIRD PARTY CONTRIBUTOR(S)) WARRANTS OR REPRESENTS THAT THE SERVICES WILL MEET THE CUSTOMER’S CAPACITY, PERFORMANCE AND SCALABILITY NEEDS, BE UNINTERRUPTED, ERROR-FREE, OR SECURE, AND THAT ALL DEFECTS WILL BE CORRECTED. THE CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN DATA TRANSFER OVER THE INTERNET THAT COULD RESULT IN THE LOSS OR COMPROMISE OF THE CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.NO ADVICE OR INFORMATION GIVEN BY PINNACA’S EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY.
19. Liability of Pinnaca
a. NOTHING IN THE AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR:
i. ANY LIABILITY WHICH CANNOT LEGALLY BE LIMITED;
ii. DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE; AND
b. SUBJECT TO CLAUSE 19.a, IN NO EVENT SHALL PINNACA, OR ANY OF ITS EMPLOYEES, OFFICERS, AGENTS, THIRD PARTY CONTRIBUTOR(S), BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) FOR:
i. LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (HOWEVER CAUSED AND UNDER ANY THEORY OF LAW INCLUDING BREACH OF CONTRACT, STATUTE, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
ii. ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES ACTUALLY RECEIVED BY PINNACA FROM THE CUSTOMER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
c. THE CUSTOMER ACKNOWLEDGES THAT EACH OF THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THE AGREEMENT AND THAT ABSENT SUCH LIMITATIONS PINNACA WOULD NOT PROVIDE THE SERVICES TO THE CUSTOMER OR ENTER INTO THE AGREEMENT.
d. THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND, SUBJECT TO CLAUSE 19.a,THE CUSTOMER HEREBY RELEASES PINNACA AND ITS THIRD PARTY CONTRIBUTOR(S) FROM ANY LIABILITY FOR LOSS OF DATA.
20. Default: Remedies
a. Pinnaca Default and Customer Remedies – In the event Pinnaca is in default of a material term or obligation of the Agreement or document referred to herein, the Customer will give Pinnaca written notice of default, setting forth the nature of the default. Pinnaca will have thirty (30) days following receipt of the Customer’s notice to cure such failure or to take reasonable steps to cure such failure if such failure cannot reasonably be cured within such thirty (30) day period. In the event of the failure of Pinnaca to cure such failure or to take reasonable steps set forth above, the Agreement and/or the applicable Order, at the Customer’s option and upon written notice to Pinnaca, will terminate and all obligations of the Customer to make payments to Pinnaca for Services not yet performed will cease upon delivery of written notice to Pinnaca by the Customer. Upon the Customer’s termination, Pinnaca will refund the Customer the amounts for any unused portion of any pre-paid fees proportionate with the remaining term of the Agreement. APART FROM ANY CLAIM RELATING TO THE TERMS OF CLAUSE16, THIS CLAUSE20.a SETS FORTH THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THE AGREEMENT BY PINNACA.
b. Customer Default and Pinnaca Remedies – The Customer will be in default under the Agreement in the event the Customer fails (a) to pay any amounts when due, and does not cure such breach within ten (10) business days of notice; or (b) to correct any failure in the performance and observance of any other material term or obligation of the Customer as set forth in the Agreement, and does not cure such breach within thirty (30) days of notice, except to the extent such default arises from acts or omissions of Pinnaca. At the end of such 30 days, if such default remains uncured, Pinnaca will have no further obligation to provide Services to the Customer and Pinnaca may terminate the Agreement without any liability in respect of such termination. In addition, upon such termination for cause by Pinnaca, Pinnaca may retain as liquidated damages all payments previously received, and the Customer will remain obligated to pay to Pinnaca all amounts then in default.
22. Notices – The Customer’s Notice within the meaning of the Agreement will be deemed to have been received as follows: a) if said notice is delivered by email, when Pinnaca, by way of “receipt” notification delivered to the email address of the Customer, or to an email address otherwise specified by the Customer, acknowledges having received said email; or by way of other email communication expressly stating receipt of Customer’s notice; or b) where notice is being delivered by regular mail, within three (3) business days of the date of the Customer having sent off the notice, conditional to such delivery occurring domestically.
For greater clarity, however: any such acknowledgement of receipt of the Customer’s Notice by Pinnaca does not constitute acknowledgment and/or acceptance of the Customer’s termination of the Order, or any part thereof, in accordance with clause 10 above unless Pinnaca expressly confirms such acceptance and/or acknowledgement in writing.
Customer’s notices are to be sent as follows:
a) If delivered by email to Pinnaca: email@example.com (exclusively)
b) If delivered by regular mail to Pinnaca:
Where the Pinnaca contracting entity is BCS Global Networks Limited, to the following address with a copy to Pinnaca Canada (at the address below):
Keypoint, 17-23 High Street
Attention: Office Management
Where the Pinnaca contracting entity is Video Guidance.com, Incorporated, to the following address with a copy to Pinnaca Canada (at the address below):
5929 Baker Road
Attention: Finance Team
Where the Pinnaca contracting entity is BCS Global Networks Inc.:
5525 Eglinton Avenue W., Unit 128
Attention: Contracts Management
24. Force Majeure – Either party shall not be liable for any delay or failure in performance of any part of the Agreement if such delay or failure arises from any cause beyond its reasonable control, including, but not limited to, governmental action or restriction (including the denial or cancellation of any export, or import of licenses), labour disruption, shortage of supply, electrical, internet or telecommunication disruption, or requirements of any governmental authority. The obligations under the Agreement shall be suspended to the extent made necessary by such event of force majeure, provided that the party whose performances fails or is delayed shall give immediate notice to the other party of the event of force majeure and provided that the disabling effect of such event of force majeure shall be eliminated as soon as reasonably possible and to the extent reasonably. This clause shall not apply to the Customer’s obligation to make payment for Services rendered by Pinnaca.
25. Document Retention – Pinnaca may, upon termination of the Agreement, retain documents as is necessary to comply with its own document retention policies or as required by applicable law, or by a governmental or regulatory agency or body, in which case all such retained documents shall continue to be subject to the terms of the Agreement. If media or storage is to be destroyed or re-used, Pinnaca and/or its representatives will securely remove Confidential Information from hard drives, backup media, removable media (including laptop computers and other portable devises), databases and websites using industry standard data destruction mechanisms prior to hardware disposal or re-usage. Pinnaca will make all efforts to provide a certificate of destruction where so possible and if required by Customer.
26. Assignment – The Agreement is not assignable by the Customer without Pinnaca’s prior written consent and is between Pinnaca and the Customer as principals; however, Pinnaca reserves the right to assign the Agreement without the Customer’s consent, or to sub-contract all or any of their rights and obligations hereunder.
27. Entire Agreement – These Terms and Conditions, the documents referred to in the Order Form, all exhibits and other attachments and the additional terms set forth at http://pinnaca.com/terms.htm and http://pinnaca.com/serviceterms.htm constitute the entire agreement and understanding between the parties in respect of the matters dealt with in them and supersede, cancel and nullify any previous agreement between the parties in relation to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.
28. No Waiver – No waiver of any right, obligation or default shall be implied, but must be in writing, signed by the party against whom the waiver is sought to be enforced. Any particular waiver of any right, obligation or default shall not be construed as a waiver of any right, subsequent or other right, obligations, or default. The remedies of either party provided herein shall be cumulative and not exclusive.
29. Relationship Between Parties – Each party hereto is an independent contractor under the Agreement, and no license, joint venture or partnership, express or implied, is granted pursuant to the Agreement. Neither party has the authority to bind the other party, or act for the other party, in any manner.
30. Non-Solicitation – Both Parties agree not to directly solicit for employment, hire or contract for the services of any of the other Party’s employees providing or managing the services hereunder, from the effective date of the Agreement until one (1) year after the completion and expiration of all items relating to the provision of the applicable Services.
31. Severability – The provisions of the Agreement are severable, and if any provision hereof is declared to be void by a court of competent jurisdiction, that provision shall be severed from the Agreement and the remaining provisions shall be effective as if the void term were not included herein.
32. Binding Effect – The Agreement is binding upon, and will inure to the benefit of, each of the parties and their respective successors and permitted assigns.
33. Governing Law
a. Where the Pinnaca contracting entity is BCS Global Networks Limited, these Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of Slough, Berkshire, or the courts having proper jurisdiction, as the case may be, in England and Wales shall have the exclusive jurisdiction to settle any dispute or claim (including any non-contractual disputes or claims) that arises out of or in connection with these Terms and Conditions or its subject matter.
b. Where the Pinnaca contracting entity is Video Guidance.com, Incorporated, these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Minnesota, United States. The parties irrevocably agree that the courts of the city of Minneapolis, or the courts having proper jurisdiction in the State of Minnesota, as the case may be, in the United States shall have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions or its subject matter.
c. Where the Pinnaca contracting entity is BCS Global Networks Inc., these Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. The parties irrevocably agree that the courts of the city of Toronto, Ontario, or the courts having proper jurisdiction in the Province of Ontario, as the case may be, in Canada shall have the exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions or its subject matter.
IN WITNESS WHEREOF the parties have executed these Standard Terms and Conditions, as of the date first set out in writing below through and by their duly authorized representatives.