Terms of Service
Updated October 27, 2020
TERMS OF SERVICE
These Terms of Service were last updated on October 27, 2020.
(a) this webpage (“Terms of Service”); and
(b) the applicable Sales Order (“Sales Order”) signed by the entity identified as the customer in the Sales Order (“Customer”),
form the agreement (the “Agreement”) between Function Point Productivity Software Inc. (“FP”) and the Customer.
1. SERVICE SUBSCRIPTION, TERM AND TERMINATION
1.1 Service Description.
Function Point consists of a website and online services provided at functionpoint.com, including subdomains, accessible through a registered account (“Account”) (collectively, the “Service”). The Service provides certain project management functions and may also include addons that provide other functionality for an additional fee and that are set forth at functionpoint.com (collectively, “Features”). Features are subject to change at any time, at FP’s sole discretion, without notice or compensation.
1.3 Service Subscription.
FP grants Customer a subscription to access and use the Service, as permitted by FP (the “Subscription”). Customer hereby acknowledges that no title or ownership interest in the Service is transferred or assigned to Customer and that the Agreement is not a sale of any right to the Service.
1.4 Subscription Term.
The Subscription granted to Customer in the Agreement commences on the effective date as set out in the Sales Order and continues for a period of one year (the “Initial Term”). Thereafter the Subscription will renew automatically for successive one-year terms (each, a “Renewal Term”) unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current term Sales Order (the Initial Term and any Renewal Terms are, collectively, the “Term”).
1.5 Subscription Fee.
Customer shall pay FP the Subscription fee and any additional fees or charges, as set forth in the Sales Order, during the Term. The Subscription fee is based on the number of users and addons Customer desires. FP may increase Subscription fee upon the start of each Renewal Term provided that FP shall provide Customer with sixty (60) days’ notice of any such increase in the Subscription fee. Unless otherwise specified in a Sales Order, all payments to FP are due immediately and shall be made by either EFT, wire transfer, or credit card (only if the total annual value of the contract is less than $6,500). If Customer authorizes the charging of the applicable Subscription fees to a credit card, FP shall charge such credit card account and shall continue to charge that card (or any replacement card) during the Term. If payment is not received from Customer’s card issuer, Customer agree to promptly pay all amounts due upon demand.
1.6 Subscription Termination.
Notwithstanding the foregoing or anything contained in a Sales Order, the Subscription terminates upon the earliest of:
a. upon written notice by Function Point, upon Customer’s failure to pay any fee or charge due and owing by Customer to FP and Customer’s failure to remedy such non-payment within thirty (30) days after receiving notice of it;
b. Customer’s noncompliance with this Agreement, or non-compliance of any user of Customer’s Account with the Terms of Service, and failure to remedy such non-compliance within thirty (30) days after receiving notice of it;
c. at the other party’s option, if a party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership or liquidation is commenced against the other party and not dismissed within thirty (30) days following commencement;
d. the end of the applicable term in which a party has provided notice of non-renewal pursuant to Section 1.4; or
e. FP ceasing to offer the Service and that may occur at any time without notice.
Unless otherwise specified in a Sales Order or this Agreement, where the Subscription is terminated, Customer is not entitled to a refund of any kind. Upon termination pursuant to section 1.6, FP may permit Customer to access the Account for 30 days. During this period Customer may remove Customer Content (as defined herein). Thereafter, FP shall cease providing Customer with access to the Account and all associated data, including Customer Content, will be permanently deleted from FP servers.
1.7 Subscription Limitations.
The Subscription granted to Customer in this Agreement is subject to limitations. Customer agrees to not:
a. modify, reverse engineer, decompile, disassemble, commercially distribute, sublicense, resell or transfer the Service in any way;
b. damage, harm, modify or otherwise impair the Service or any connected network;
c. use automation software or any other unauthorized software to modify the Service or the Service experience;
d. attempt to gain unauthorized access to the Service including, but not limited to, through the use of another user’s Account or through any method not provided by or approved by FP;
e. through use of the Service, infringe or violate the right of a third party including but not limited to: (1) contractual rights; (2) copyright, patent, trademark or trade secret; (3) privacy rights; (4) publicity rights; or (5) confidential information; or
f. through use of the Service, encourage or engage in illegal activities.
2. ACCESSING THE SERVICE
Access to the Service requires hardware including, but not limited to, a computer or mobile device and an Internet connection. Customer agrees to provide all hardware and the Internet connection required to use the Service. Customer shall be responsible for any fees incurred when accessing the Service through an Internet connection.
2.2 Account Login Information.
Access to the Service requires that Customer obtain an Account from FP. The Account may be accessed by a username and password provided by FP or by way of single sign-on through permitted Third Party Services (as defined in section 5) (“Login Information”). Customer is solely responsible for keeping Login Information confidential and agrees to be bound by any use of Login Information, including any purchases, whether or not Customer authorized such use of Login Information. If Customer becomes aware, or reasonably suspects, unauthorized use of the Account, Customer must immediately change the password that is part of Login Information. Any questions concerning unauthorized use of the Account may be emailed to FP at firstname.lastname@example.org.
2.3 Account Access.
Customer agrees that the Account may only be used, at any time, by the number of permitted users set forth in the Sales Order. The number of permitted users may be changed by contacting FP by email at email@example.com. Customer agrees to execute any documents reasonably requested by FP to effect a change to Customer’s Subscription, including the number of permitted users. Customer acknowledges that: (i) the number of permitted users (and the associated Subscription fee) may not be decreased except at the start of a Renewal Term with no less than 30 days advance written notice to FP before the start of that Renewal Term; and (ii) Customer may not decrease the number of permitted users below FP’s then standard minimum number of permitted users.
2.4 Account Ownership.
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NO OWNERSHIP OR ANY OTHER PROPERTY INTEREST IN THE ACCOUNT AND FURTHER ACKNOWLEDGES AND AGREES THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL BE FOREVER OWNED BY AND INURE TO THE BENEFIT OF FP, EXCLUDING CUSTOMER CONTENT (AS DEFINED IN SECTION 6).
2.5 Account Suspension and Termination.
FP may suspend or terminate the Account at any time due to Customer’s violation of the Agreement or a user of Customer’s Account violating these Terms of Service provided FP first gives notice to Customer providing details of the violation and Customer does not cure or cause such violation to be cured within ten (10) days of receipt of such notice. Whether an Account suspension imposed by FP will be lifted is at the sole decision of FP.
3. UPDATES AND TRAINING
3.1 Service Updates.
FP shall update the Service as soon as reasonably possible following regular development and testing undertaken to FP’s sole satisfaction. Access to the updated Service occurs automatically and will be available to Customer at no additional cost upon Customer accessing the Service following an update. Notwithstanding the foregoing, Service updates do not include new or modified Features for which FP decides, in its sole discretion, to charge an additional fee to use.
FP shall provide Customer with Service on-boarding and consulting as set forth in the Sales Order (“Training”). Customer and FP shall mutually agree to the date, time and place at which FP shall provide such Training. Customer shall nominate a minimum of three contacts (“Primes”) that shall act as FP’s contact persons for Training and ongoing matters. If Training should occur onsite, Customer is liable for travel and related expenses incurred by FP, which will be presented to Customer for approval prior to being incurred. Where Training exceeds ninety (90) days due to delays caused by Customer, FP may impose additional fees based on the then-in-effect hourly rate FP charges for training. If Customer desires additional Service training sessions, the parties shall negotiate a separate fee for such training.
FP shall provide Customer with customer support as part of the Services and that shall include telephone, email and a support ticketing system as set forth at support.functionpoint.com (“Support”). FP shall suspend provision of Support in the case of Customer’s non-payment of any outstanding fee until remedied, provided FP first gives notice to Customer providing details of the non-payment and Customer does not cure non-payment within ten (10) days of receipt of such notice.
3.4 Additional Services.
FP may provide additional services upon request by Customer and mutual agreement of both parties. Any additional services are subject to FP’s then-standard rates for such services.
Customer shall pay all goods and services taxes applicable to amounts Customer pays to FP under this Agreement. If FP is obligated to pay any taxes, fees, or levies on Customer’s behalf, Customer shall reimburse FP in full promptly following receipt of FP’s invoice for such payment made on Customer’s behalf.
5. THIRD PARTY SERVICES
The Service may allow Customer to integrate with third-party services that are not provided by FP but that enhance the overall functionality of the Service (“Third Party Services”). The Agreement does not grant Customer any license, right, title or interest in Third Party Services. Use of Third Party Services may require Customer to enter into agreements between Customer and a third party. It is up to Customer to determine whether to agree to the terms of any Third Party Services agreement. Integration of Third Party Services is contingent upon third parties permitting FP to integrate the Service with their respective Third Party Services and such permission and/or integration may end at any time without notice. FP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD PARTY SERVICES OR THE CONTINUED AVAILABILITY OF THE SERVICE’S INTEGRATION WITH THIRD PARTY SERVICES. CUSTOMER AGREES THAT FP WILL NOT BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE RELATING TO THIRD PARTY SERVICES.
6. CUSTOMER CONTENT
FP has put in place suitable physical, electronic and managerial procedures for data security. For more information on FP’s current security practices, please review the FP Data Security page at www.functionpoint.com/security.
8. FP OWNERSHIP AND MARKETING RIGHTS
FP retains all right, title and interest in the Service including, but not limited to, computer code, documents and documentation, copyrights, patents, trademarks, trade secrets, trade names and methods of operation. The Service is protected by the laws of Canada and international laws.
During the Term of this Agreement, FP may use Customer’s name and logo for the limited purpose of publicly referring to Customer as FP’s customer and otherwise reasonably marketing FP’s Service. If FP requests, and Customer consents to provide, a review of the Service directly to FP or to a third party, Customer agrees that FP is automatically granted a perpetual, fully-paid, royalty-free, non-exclusive, worldwide, assignable and sub-licensable license to Customer’s name, logo, and the contents of Customer’s review for the limited purpose of marketing the Service.
9. IP INDEMNITY
9.1 Customer IP Indemnity.
FP shall defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that use of the Service in accordance with the Agreement infringes or misappropriates such third party’s intellectual property rights. FP shall indemnify Customer from any damages, costs and reasonable attorneys’ fees finally awarded as a result of, or for amounts paid by Customer under, a court-approved settlement of a claim provided that Customer: (a) promptly gives FP written notice of the claim; (b) gives FP sole control of the defense and settlement of the claim except that FP shall not enter any settlement or disposition that attributes liability or confers a financial obligation on Customer without Customer’s advance written consent, which shall not be unreasonably withheld or delayed; and (c) gives FP all reasonable assistance at FP’s expense. If FP receives information about an infringement or misappropriation claim related to the Service, FP may at its discretion and at no cost to Customer: (i) modify the Service so that it no longer infringes or misappropriates; (ii) obtain a license for Customer’s continued use of the Service in accordance with the Agreement; or (iii) if (i) and (ii) cannot be implemented on a commercially reasonable basis, terminate the Service, in which case FP shall promptly refund Customer any prepaid fees, pro-rated to the month preceding the month of termination. The above defense and indemnification obligations do not apply to the extent a claim arises from Customer Content, Third Party Services or any other non-FP application, Customer’s breach of this Agreement or a breach of the Terms of Service by a user of Customer’s Account.
9.2 FP IP Indemnity.
Customer shall defend FP against any claim, demand, suit or proceeding made or brought against FP by a third party alleging that Customer Content or Customer’s use of the Service in breach of this Agreement, or a user of Customer’s Account in breach of the Terms of Service, infringes or misappropriates such third party’s intellectual property rights or violates applicable law. Customer shall indemnify FP from any damages, costs and attorneys’ fees finally awarded against FP as a result of or for any amounts paid by FP under a court-approved settlement of a claim against FP, provided FP: (a) promptly gives written notice of the claim against FP; (b) gives Customer sole control of the defense and settlement of the claim except that Customer shall not enter any settlement or disposition that attributes liability or confers a financial obligation on FP without FP’s advance written consent, which shall not be unreasonably withheld or delayed; and (c) gives all reasonable assistance, at Customer’s expense.
THE SERVICE IS PROVIDED TO CUSTOMER “AS IS” AND FP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, FP MAKES NO REPRESENTATIONS THAT USE OF THE SERVICE WILL NOT INFRINGE ANY COPYRIGHT, PATENT OR TRADEMARK OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, FP MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM CUSTOMER’S COMPUTER OR MOBILE DEVICE OR RESULT IN LOST DATA. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY FP, ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE ANY WARRANTY AND CUSTOMER SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. CUSTOMER BEARS THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SERVICE, INCLUDING RISK OF DATA FAILURE.
11. LIMITATION OF LIABILITY, INDEMNITY
NOTWITHSTANDING SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS OR LOST SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY A THIRD PARTY. WITHOUT LIMITING THE FOREGOING AND NOTWITHSTANDING SECTION 9, REGARDLESS OF THE SOURCE, CAUSE OR FORM OF ANY HARM OR DAMAGES SUFFERED BY A PARTY, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER WILL BE THE AMOUNT OF MONTHLY FEES PAID BY CUSTOMER TO FP ON ACCOUNT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION.
12. EQUITABLE REMEDIES
Customer hereby agrees that FP would be irreparably damaged if the Agreement is not specifically observed and, therefore, Customer agrees that FP shall be entitled, without bond, other security or other proof of damages, to seek appropriate equitable remedies with respect to Customer’s breach of the Agreement, in addition to other remedies available to FP under applicable law.
13.1 Governing Law.
This Agreement is governed by the laws of the province of British Columbia and the laws of Canada applicable therein, without reference to principles of conflicts of laws, and courts in Vancouver, British Columbia, will have exclusive jurisdiction to hear any proceedings related to this Agreement and to which the parties irrevocably attorn to the jurisdiction of.
Unless otherwise specified herein, any notice required under this Agreement must be given to the respective party at the address or email specified herein or in the Sales Order and such notice is deemed received on the date of actual receipt, unless sent by mail and in which case notice is deemed received on the seventh (7th) date after sending, provided that any notice received on a statutory holiday or weekend will be deemed received on the next business day.
13.3 Entire Agreement.
This Agreement is the entire agreement between Customer and FP pertaining to the Service and supersedes any prior agreements, discussions, representations or warranties, written or oral, relating to the Service. Notwithstanding the foregoing, FP is not bound by any provision of any correspondence.
Sections 4, 6, 8, 9, 10, 11, 12 and 13 of these Terms of Service survive termination of this Agreement.
Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, FP MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER REASONABLE PRIOR NOTICE THROUGH A SERVICE MESSAGE OF SUCH AMENDMENT. UNLESS OTHERWISE INDICATED BY FP, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE SPECIFIED IN SUCH SERVICE MESSAGE NOTICE. CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER SUCH NOTICE AND AMENDMENT IS ACKNOWLEDGMENT OF AND AGREEMENT WITH SUCH AMENDMENT.
Customer may not assign this Agreement without the prior written consent of FP. FP may freely assign this Agreement.
To the extent any section, clause, provision or sentence or part thereof of the Agreement is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction then such portion will be severed and the remainder of the Agreement given full force and effect.
13.8 No Waiver.
The failure of a party to assert or enforce any right contained in the Agreement will not constitute a waiver of that right.