1. Parties to Agreement
GeoForms Software Limited T/A GeoPal Solutions (referred to as “company”, “we”, “us” and “our”);
The Customer as identified in the GeoPal Order Form (referred to as “customer”, “you” and “your”).
(each a “Party” and together “the Parties”)
2. Service Provided by Us to You
We are responsible for providing you with the GeoPal cloud software solution for mobile workforce management and mobile data capture (“The Service”). GeoPal consists of a web application and a mobile application. The GeoPal web application is used (amongst other functions) to view the location of workers, schedule their jobs, create mobile forms and receive accurate reports and dashboards from the field in real time. The GeoPal mobile application is used (amongst other functions) to receive job notifications and job workflows, fill out mobile forms, capture field information including photos, text, signatures, bar codes, GPS coordinates and to clock in and out of shifts. We are responsible for the quality, delivery and maintenance of the Service in compliance with our Service Level Agreement.
This Agreement shall take effect upon the date of this Agreement (“Order Date”) and shall be for a period of 24 months (the “Initial Term”) and automatically renew for 12 month renewal terms (“Term”) unless terminated by either party with a minimum of 30-days’ notice in writing prior to the end of the Initial Term or any renewal term.
Regardless of the date of any termination all fees (as per the Rates) to the end of the Term or Initial Term shall be due and payable to the end of the Term or Initial Term.
4. Payment and Taxes
The price at which we shall sell and you shall purchase the Service are set out in Section 3 and Appendix - Full GeoPal Pricing Schedule of the Order Form (“Rates”). We may vary the Rates but shall give you 30 days written notice of such change. The Rates will not vary during the Initial Term of this Agreement.
The Rates are exclusive of all taxes or duties and it is your sole responsibility to pay any sales tax due.
We shall issue invoices at the end of each month for the Service provided during that month. You shall remit payment to us to be received within 30 days from date of invoice. You shall pay interest to us on any overdue amount from the due date until the date of payment at the rate of 4% per year above the prevailing base lending rate of Bank of Ireland.
You may not by reason of any claim against us withhold payment of any invoice for the Service, or claim any right of set-off against any payment due to us under this Agreement.
Any invoices not paid by the due date may result in the suspension or termination of the Service to which the invoice relates, without notice to you. We may suspend or terminate a delinquent account at our sole discretion and we shall not be liable to you for any losses (including permanent data loss) incurred by you arising from the suspension or termination.
Either you or we shall be entitled to terminate this Agreement forthwith by written notice to the other ( “the defaulting party” ) if:
a.The defaulting party commits any continuing or material breach of this Agreement, but in the case of a breach which is capable of remedy the defaulting party must have been given 14 days notice to remedy the breach and have failed to do so;
b. An encumbrancer or administrator takes possession or a receiver or administrative receiver is appointed over any of the defaulting party’s property or assets;
c.The defaulting party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
d.The defaulting party ceases, or threatens to cease, to carry on business.
This Agreement will terminate by reason of any of the following:
a.The Service we provide persistently fails to meet the service levels specified in the Service Level Agreement;
b.Your actions put us in breach of the terms of our Agreement with third party providers that we use for the delivery of the Service.
Upon termination any indebtedness by you to us shall become due and payable immediately and we shall be relieved of any further obligation to supply any Services pursuant to this Agreement.
Upon termination, if requested, we will provide you with an electronic copy of your data stored on our servers and permanently delete your data from our servers.
You and we shall hold in trust and confidence and shall not disclose any part of this Agreement or other information deemed “Confidential Information” by the disclosing party and identified as such.
All information provided by us to you under this Agreement (including where you obtain information from us where we are providing information to demonstrate compliance with Data Protection Law (as set out at clause 15)) will be our Confidential Information.
Information shall not be deemed Confidential Information for the purposes of this Agreement that is:
a) already known to the non-disclosing party at the time of disclosure;
b) becomes publicly known through no wrongful act of the non-disclosing party;
c) received from a third party without similar restrictions and without breach of this Agreement;
d) independently developed by the non-disclosing party; or
e) lawfully required to be disclosed by any governmental agency or otherwise required to be disclosed by law.
Each party shall ensure that the confidentiality provisions of this Agreement bind all its employees, sub-contractors and agents and shall indemnify the other party against loss or damage suffered as a result of a breach of confidence by its own employees or agents.
The obligations of confidentiality set out in this clause survive its termination of the Agreement.
7. Exclusion of Warranties and Liability
We make no warranties, express or implied, concerning the Service or associated documentation (“User Documentation”) including, but not limited to, warranties of merchantability or fitness for a particular purpose. All warranties and conditions that might but for this clause have effect, either expressly or impliedly, between you and us are agreed to be excluded to the fullest extent permitted by law.
Neither party shall be liable to the other for any direct, indirect, incidental, special or consequential damages for loss of profits, contracts, revenue, potential or data, whether arising from negligence, breach of contract or otherwise.
You agree that your only and maximum remedy under this Agreement is limited to any recurring fees paid to us by you in the previous six months.
You hereby agree to defend, indemnify and hold harmless us and any of our companies, officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable fees and costs, arising out of or in any way connected with your access to or use of the Service.
9. Modifications, Maintenance and New Releases
You may make suggestions to us for modifications to the Service that we may, at our sole discretion, incorporate in future new releases of the Service. You agree to pay us the agreed fees, if any, for modifications made to the Service. Throughout the term of this Agreement we at our sole discretion may from time to time make maintenance releases or new releases of the Service. We will give you advance notice were possible of any modification, maintenance or new release of the Service.
As set out in clause 11, any modifications shall be our sole and exclusive property. You agree that we own the right, title and interest in any modification. You agree to take any action to insure we obtain all rights and title to any such modification.
The Service should be available 24 hours a day, seven days a week. It is possible that the Service may be unavailable for periods of time due for example to maintenance, hosting faults or mobile network faults. We will use reasonable endeavours to inform you in advance by email of schedules of any such activity.
10. Force Majeure
The performance of this Agreement is subject to variation or cancellation by us owing to: any Act of God, war, strike, fire, flood, drought, tempest or any other cause beyond our reasonable control; or any inability by us to procure materials, technical services, or articles required for the performance of this Agreement. We shall not be liable for any inability to deliver or to perform our obligations caused by any such event.
11. Intellectual Property and Third Party Rights
For the purpose of this Clause 11, Intellectual Property Rights or IPR means all patents and patent rights, trademarks and trademark rights, trade names and trade name rights, service marks and service mark rights, service names and service name rights, brand names, copyrights and copyright rights, trade dress, business and product names, logos, slogans, trade secrets, industrial models, utility models, design models, designs, rights in confidential information, know-how, rights in the nature of unfair competition rights and rights to sue for passing off, and all pending applications for and registrations of patents, trademarks, service marks, and copyrights together with all connected and similar or analogous rights in any country or jurisdiction for the full term thereof.
We confirm that we have all rights in relation to the Service that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement. You agree not to challenge or otherwise prejudice the validity or the ownership of the IPR owned by us relating to the Service. You shall immediately advise us of any threat to or infringement of our IPR by any person. In such event you shall give us all reasonable assistance in relation to such threat or infringement. You shall, at our expense, take all such steps as we may reasonably require to assist us in maintaining the validity and enforceability of our Intellectual Property Rights during the term of this Agreement.
Without prejudice to your right or any right of a third party to challenge the validity of any Intellectual Property Rights of the Company, you shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with our Intellectual Property Rights and shall not omit to do or authorise any third party to omit to do, any act which, by its omission, would have that effect or character.
In the defence or settlement of any claim made by a third party which alleges that we are infringing the IPR of that third party, we may procure the right for you to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
a) a modification of the Service or User Documentation by anyone other than us; or
b) your use of the Services or User Documentation in a manner contrary to the instructions given to you by us; or
c) your use of the Services or User Documentation after notice of the alleged or actual infringement from us or any appropriate authority.
We make no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Service nor as to whether the same infringe on any Intellectual Property Rights of third parties.
Other than the licence expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights.
We hereby grant to you a non-exclusive, non-transferable right to use the Services for the Term of this Agreement. You shall not remove our copyright, logo or trademarks from any service or documentation without the express written consent from us. You do not obtain any rights (goodwill or Intellectual Property Rights or any other) under this Agreement in our IPR.
You fully acknowledge that the Company is the sole and exclusive owner of copyright(s) in the Services. You shall maintain the Company’s copyright notice on the Services and shall not alter, erase, deface or overprint any such notice on anything provided by the Company having such copyright(s).
Any new features, services, sites, apps, modifications, and/or products that you request, suggest or inform us of, and that we incorporate in our Service shall remain the sole, exclusive and absolute intellectual property of the Company regardless of the use or success (financial or technical) of such features, services, sites, apps and/or products. You agree to take any action to insure we obtain all rights and title to any such features, services, sites, apps, modifications and/or products.
12. Nature of Agreement
The Company, at any time, may at it sole discretion assign this Agreement and any and all of its rights and obligations under it. The Customer has no right to termination upon a change of control of the Company (for example though a stock purchase or sale, investment of any kind, merger or other form of corporate transaction). The Customer shall be informed where possible of such actions.
This Agreement is specific to the Customer which may not without the written consent of the Company dispose of any of its rights / obligations hereunder or transfer or sub-contract or otherwise delegate any of its rights / obligations hereunder without prior written permission by the Company.
13. Applicable Law
This Agreement is governed by Irish Law and the parties hereby submit to the exclusive jurisdiction of the Irish Courts.
14. Restrictions on Use
Unless you have received prior written authorisation from us you must not:(a) access or use the Service with any technology or means other than those recommended by the Company; (b) copy, translate, modify, or make derivative works of the Service or any part thereof; (c) redistribute, sublicense, rent, publish, sell, assign, lease, market, transfer, or otherwise make the Service available to third parties; (d) reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof; (e) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Service.
15. Data Protection
• For purposes of this clause 15:
“Controller” shall have the meaning set forth in the Data Protection Law;
“Processor” shall have the meaning set forth in the Data Protection Law;
“Data Protection Law” means collectively, the Data Protection Acts 1988 and 2003 of Ireland, the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 and any other applicable laws and regulations governing data protection and privacy as are in effect in Ireland on the Order Date and as may be enacted or enter into effect from time-to-time during the Term including the GDPR;
“GDPR” means the General Data Protection Regulation 2016/679;
You expressly acknowledge and agree that the Company has no control over the content of data supplied by you to us which may include, among other things, personal data and special categories of personal data (as defined under GDPR) relating to the Customer’s own clients, customers, suppliers, employees and other personnel.
You further acknowledge and agree that you are responsible for determining the purposes for and manner in which all data is processed, and hereby undertake that it has taken, and shall throughout the duration of the Agreement, take all measures concerning the data to ensure compliance with your obligations under Data Protection Law.
You acknowledge that it is your obligation to obtain and maintain all required consents from data subjects to any processing or sub processing carried out by us or on your behalf and to maintain all required registrations, licences and authorisations from any supervisory authority in relation to personal data. Where any claim arises in whole or in part from your failure to do so or as a result of any misrepresentation made by you, you shall indemnify and hold us harmless from and against all such claims, costs, penalties, damages or losses relating to such a claim.
15.1 Processing of Personal Data and Instructions
15.1.1 In relation to the provision of Services by us to you, you are and shall be a Controller and we are and shall be a Processor. We shall process the personal data in accordance with the Agreement and otherwise on your instructions or such persons as you have confirmed in writing is authorised to provide such instructions (an “Authorised Agent”), in each case for the sole purpose of performing our obligations under the Agreement and for the duration of the Agreement.
15.1.2 If in our opinion an instruction from you or any Authorised Agent infringes Data Protection Law, we shall promptly inform you but shall be entitled to rely on and act on such instruction and where we do so we shall not be liable for any claims, costs, penalties or damages or loss of any nature in so acting and you hereby indemnify and shall hold us harmless in respect of all such claims, costs, penalties, damages or losses, arising from such instruction.
You consent that GeoPal support staff may access any part of your account and data for the purposes for ongoing account management and maintenance.
We have implemented and will maintain appropriate technical and organisational measures which are intended to ensure against:
a. unauthorised access to;
b. unauthorised or unlawful alteration, disclosure, destruction or unlawful processing of;
c. accidental loss or destruction of; and
d. damage to the Personal Data
15.3 Storage and Transfers of Personal Data
We confirm that unless otherwise specified and agreed, any personal data processed by us shall be stored in data centres located within the EEA and that it shall not use data centres for the provision of Services which are located outside the EEA without your prior consent.
15.4 Demonstrating Compliance
We agree to demonstrate our compliance with GDPR. Any actions required by you to be carried out by us in this regard shall be at your cost.
15.5 Assistance with Compliance Obligations
We agree to provide reasonable assistance to you without undue delay in respect of your obligations regarding:
a). requests from data subjects in respect of access to or the rectification, erasure, restriction, blocking or deletion of personal data;
b). the investigation of any incident which gives rise to a risk of unauthorised disclosure, loss, destruction or alteration of personal data and the notification to the supervisory authority and data subjects in respect of such incidents; and
c). the preparation of data protection impact assessments and, where applicable, carrying out consultations with the supervisory authority.
All costs incurred by the Company in the provision of the assistance outlined at 15.5 (a)-(c) shall be invoiced to you, which invoice shall be payable by you within thirty (30) days of the date of such invoice.
15.6 Our Personnel
We will impose appropriate contractual obligations regarding confidentiality on any personnel authorised by us to process the personal data.
15.7 Law Enforcement/Governmental Requests
We will not disclose personal data to a third country law enforcement agency unless it is necessary to comply with a valid and legally binding court judgment, order or request.
Where we receive a valid and legally binding court judgment or order or request from any law enforcement or governmental authority to disclose personal data, then, unless prohibited by law, we will inform you before disclosure to provide you with the opportunity to seek protection from disclosure.
15.8 Data Breach
If we become aware of unauthorised access to any of your personal data on our equipment or in our facilities and such unauthorised access results in loss, disclosure or alteration of that data, we will notify you without undue delay, providing sufficient information to enable you to assess the breach and to discharge your obligations regarding notifying supervisory authorities or data subjects under Data Protection Law.
15.9 Data Portability
We acknowledge the right to data portability (as defined in GDPR). You acknowledge and consent that for technical reasons it is not feasible to port the personal data to other systems including field service management and work order management systems.
15.10 Termination of Agreement and Deletion of Protected Data
The Parties agree that on the termination of the Agreement, we shall, within three months of the date of termination, delete all personal data from our systems and upon request provide written confirmation to you that we have taken such measures.
Minors (less than 18 years old) are not eligible to use the Service in any way and are strictly prohibited. Minors may not submit any information (personal or otherwise) to us whatsoever or interact with the Service. You are solely and absolutely responsible for ensuring this is the case.
You shall ensure that you shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property; and
- the Company reserves the right, without liability or prejudice to its other rights against the Distributor, to disable access to any material that breaches the provisions of this clause.
If at any time any one or more of the provisions of this Agreement or any part thereof is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties.
If either party fails to enforce any term, failure to enforce on that occasion shall not prevent enforcement on any other occasions. Both parties agree that for the waiver of any term to be effective such waiver shall be in writing and signed by the party waiving its rights.
20. No Partnership
Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto.
21. Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
We or you may serve notice under this Agreement at either the registered office or nominated business address of the other party and notice will be deemed to have been served:
By post : two business days after posting;
By email : one business day after sending.