By accessing the software and tools (the “Software”) provided by Pinchin Ltd. (“Pinchin”) on this website (“Site”) or through Pinchin’s applications (“App”), you (the “Client”) agree to the terms and conditions outlined in the Cloud Authorization to Proceed (“Digital Services Agreement”) and/or in the proposal (“Digital Services Proposal”) and the following terms and conditions (the “Terms and Conditions”) and the Digital Services Agreement and/or Proposal and the Terms and Conditions form a binding agreement (the “Agreement”) between the Pinchin and the Client:

Services

Pinchin shall provide Cloud based software (the “Software”) and applications (“Apps”) for use by the Client to access and manage a variety of data related to projects at Client sites. The specific Cloud based services provided are detailed in the Digital Services Proposal Pinchin sent to the Client. Pinchin offers Cloud based services for a variety of purposes, which may include the following:

a)      To access information regarding “Hazardous Materials Management” in connection with the management of data related to building materials;

b)      To access information through “IEQ app” in connection with the management of data related to Indoor Air Quality at Client locations;

c)      To access information through a “Radon app” in connection with the management of data related to Radon gas at Client sites;

d)      To access information through “Pinchin CORE” for real-time data management, visualization and analytics as it relates for environmental, building-related or other sensors, including Internet of Things (IoT).

e)      To access information through Pinchin’s Esri GIS Enterprise Portal “Data Management, Mapping and Customized Dashboards” for data management, geo-spatial analysis of environmental or other data.

The Client shall be provided access to a web-site (the “Site) or application (“App”) maintained by Pinchin to enable the Software to be accessible by an unlimited number of the Client’s employees from any computer or Phone which is owned by the Client, via the internet and/or cellular service.

Service Level Agreement

During the term of this Agreement, Pinchin shall provide the following to the Client: (a) access to the Site and Software and App 24 hours per day, 7 day per week (subject to maintenance windows and unplanned disruptions beyond Pinchin’s reasonable control); (b) daily back-up of data; (c) firewall protection; support for technical difficulties between the hours of 9:00 a.m. and 5:00 p.m. Eastern time zone on all “Business Days”, being days other than Saturdays, Sundays and statutory holidays observed where Pinchin carries on business; and (d) a minimum of 1 gigabyte of storage space for data accessible through the Site.

Pinchin agrees that upon request from the Client it will provide the following: (a) archiving of data; (b) back up tapes or discs; (c) the service of loading of additional data; and (d) extra storage space for data accessible through the Site, provided that the Client pays Pinchin's then standard rates for the foregoing.

Term

This Agreement shall remain in effect for two years following the effective date hereof, unless stated otherwise in the Digital Services Proposal. Despite the foregoing, however, either party may terminate this Agreement upon giving notice of such termination if the other party: (a) commits a breach of any of its obligations hereunder that is not rectified within 15 days after notice of such breach; (b) becomes insolvent; or (c) ceases to carry on business.

Either party may terminate this Agreement for any reason by providing the other party with at least 6 months’ notice.  

If neither party provides written notice, at least 30 days prior to the expiry of the term of this Agreement, that such party does not wish to renew this Agreement, the same shall be automatically renewed for an additional term of two years and, until such a notice is given in accordance with this section, this Agreement will be automatically renewed for successive renewal terms of 2 years each.

Upon the termination of this Agreement the Client shall immediately cease to access the Site or use the Software, and, upon request made by Pinchin shall deliver to Pinchin, without retaining any copies, all Intellectual Property (other than reports produced for the Client's benefit) then in its possession.

Hosting

The Client is hereby granted a non-exclusive, non-transferable license to access and use the Software via the Site or App as described and on the terms set out here and in the Agreement between Pinchin and Client.

The Client acknowledges that Pinchin may, in its discretion, update and modify the Software and the Site and the App from time to time.  If Pinchin considers any such update or modification to be material, it shall notify the Client prior to or at such time as the update or modification comes into effect. 

Pinchin may in its discretion update or modify the Software or the Site or App or create new modules without making the update or modified versions or new modules available to the Client, provided that Pinchin shall make the same available to the Client if the Client agrees to pay such additional fees for the same as Pinchin may require.

Pinchin may re-locate the Site or App to a new domain provided that Pinchin gives notice of such re-location to the Client.

The Client shall provide at its expense all equipment and facilities necessary to access the Site or App from time to time.   The license does not include any right to: (a) download the Software to any computer or storage device; or (b) have access to the object or source code of the Software. Pinchin is not obligated to provide the Client with any maintenance, training or enhancements in respect of the Site or App or the Software, nor is Pinchin obligated to assist the Client with the importing of the Client’s data into the Software.  However, at the Client’s request, Pinchin may provide additional services of the nature referred to above at Pinchin’s then standard rates for such services.

Limitations

The Client shall not permit any unauthorized access, alteration, theft, corruption or destruction of files, data, transmission facilities or equipment related to the Software or the Site or the App, and shall not use the Software or the Site or the App for illegal, improper or unacceptable practices and shall, without limiting the generality of the foregoing, not permit the dissemination of any  viruses, Trojan horses, time bombs, worms, or other code which may interrupt, destroy, or limit the function of any software, hardware or communications equipment, unsolicited mass email or other improper internet based advertising campaigns, privacy breaches, denial of use attacks, spoofing, or impersonation and shall not interrupt or attempt to interrupt the operation of the Software or the Site or the App in any way. 

The Client represents and warrants that its use of the Software, the Site, and the App and any files information or data that it may upload to the Site, or database via the App: (i) will not infringe any copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) will not violate any law, statute, ordinance or regulation; (iii) will not be defamatory or trade libelous; (iv) will not be fraudulent, infringing, abusive, lewd, obscene, pornographic or act otherwise contrary to the laws of Ontario and the laws of Canada.

The Client shall not tamper with the Site and/or Software and/or App through, without limitation, attempts to translate, reverse engineer, decompile, disassemble to modify the Site and/or Software and/or App, or to merge the Site and/Software and/or App with another system. Data mining, scraping, framing or mirroring is strictly prohibited and data may not be extracted from the Site and/or Software and/or App except as expressly provided for within these Terms and Conditions and/or Agreement. Notwithstanding any other provision, the Client will be allowed to download the App onto any computer, phone, or tablet and use it as per the terms of this agreement and as instructed by Pinchin.

 Pinchin will not be required to routinely monitor the Client's use of the Software or the Site or the App, but reserves the right to do so. In addition to any other termination rights set out in this Agreement, Pinchin may remove or have removed from its servers any Files which it believes violates these terms in its discretion and may suspend or terminate this license and block access to the Software and the Site and the App without notice if it becomes aware of, or has reason to suspect that, a violation of the terms of this Agreement has occurred or is occurring.

Security

Pinchin shall provide the Client with account and password information granting access to the Software via the Site or the App. The Client is solely responsible for the confidentiality of its account, and all acts and omissions associated with its account, including, without limitation, the acts and omissions of third parties.

In the event of any known or suspected unauthorized use of the Software or the Site or the App, or any known or suspected breach of security, including without limitation, loss, theft, or unauthorized disclosure of the Client’s password information, the Client shall notify Pinchin immediately in writing. Despite such disclosure, the Client will remain responsible for all acts and omissions associated with its password.

The Client will not attempt to access the Site or use the Software or the App except during the term of this Agreement using the password assigned to the Client by Pinchin.

Confidentiality of Client Information

In the performance of this Agreement, or in contemplation thereof, Pinchin may have been or may be given access to business plans, product plans, marketing and sales information, client lists, know-how, trade secrets and confidential information owned by the Client. Pinchin shall keep all such information (other than information that is or that comes into the public domain other than by a breach of this Agreement) confidential in accordance with reasonable industry practices and shall make such information available only to those of its employees and subcontractors who require such access in connection with their work. Pinchin will not disclose any Client’s confidential information, except as outlined in this Agreement.

Privacy Online

Personal information regarding the Client's customers, employees or other parties may be disclosed to Pinchin from time to time. Such personal information shall be treated in accordance with applicable privacy legislation and Pinchin's privacy policies. Pinchin shall not, without the Client's consent, use or disclose such personal information except to the extent necessary to provide access to the Software and the Site and the App, including, without limitation, to maintain databases, and to otherwise comply with and enforce this Agreement. Pinchin shall use reasonable security measures to prevent the unauthorized use and disclosure of personal information to third parties. Pinchin will notify the Client of any request for disclosure of personal information by any party. Pinchin shall also notify the client if Pinchin discovers that any unauthorized access to such information has occurred.

Disclosure of Confidential Information or Client Data

Should Pinchin be forced by law, deposition, interrogatory, request for information or documents, subpoena or otherwise to disclose any confidential information and/or client data, Pinchin agrees to notify the Client as soon as is reasonably possible, by written notice, in order for the Client to seek a protective order or other appropriate remedy or to waive compliance with the provisions of this Agreement. If, in the absence of such protective order or other remedy or receipt of such waiver, Pinchin is nonetheless, in the opinion of its legal counsel, legally compelled to disclose confidential information and/or Client data, Pinchin will be allowed to disclose such portion of confidential information and/or Client data which such counsel advises Pinchin that it is legally required to disclose.

Access Fees and Invoicing

In consideration of being granted access to the Site and the right to use the Software and/or App, the Client agrees to pay to Pinchin, an initial set-up charge payable upon the beginning of the Term and monthly access fees (“Access Fees”) as set out in your Digital Services Proposal. The Digital Services Proposal is incorporated into and forms an integral part of this Agreement. Pinchin may amend the Digital Services Proposal, in its discretion, from time to time, provided that it shall not do so more than once in any twelve month period and shall not do so within twelve months of the date of the Digital Services Proposal.

Pinchin shall submit invoices for Access Fees payable by the Client, and payments shall be due thirty days after the date of invoice. All overdue payments shall bear interest at the rate of 2% per month (24% per annum). The Client must notify Pinchin of any incorrect charge within thirty (30) days of receiving an invoice from Pinchin. After any such thirty (30) day period, the Client shall forfeit any recourse to Pinchin to claim a credit.

Refunds on Termination

In the event that this Agreement is terminated for any reason whatsoever, Pinchin shall render to the Client a final statement of Access Fees and taxes owing and/or outstanding. As such outstanding account shall be immediately due and payable by the Client. After payment in full of all fees and taxes, Pinchin shall return the balance, if any, to the Client.

Insurance

Pinchin represents and warrants that it has in place an insurance policy with a liability limit of not less than $2,000,000, in reference to “IT Professional Liability”, the details of which policy will be provided upon written request from the Client. Pinchin hereby undertakes to use commercially reasonable efforts to ensure that such policy is renewed or replaced on substantially similar terms such that substantially similar insurance remains in place throughout the term of this Agreement.

Force Majeure

Each party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result in whole or in part from causes beyond its reasonable control; this includes client’s inability to access the site or app due to delays, interruptions, and/or failure of the site or app and due to errors or failure of the monitoring and sensor equipment.

No Assignment

Neither this Agreement nor any of the rights or obligations of the Client may be assigned without Pinchin's prior written consent. Pinchin may assign this Agreement without consent.

Binding Upon Successors

This Agreement shall ensure to the benefit of and be binding upon each party and its permitted successors and assigns.

Notice

Any notice or other communication required or permitted to be given by this Agreement shall be in writing and shall be effectively given if: (a) delivered personally; (b) sent by prepaid courier service; or (c) sent by fax; (d) or sent by email to the address provided for such party, or such other address as the party which is to receive the notice indicates to the party providing the notice, in the manner provided for in this section.

Any notice or other communication delivered personally or by prepaid courier service shall be deemed to have been given and received on the day it is so delivered at such address, provided that if such day is not a Business Day such notice or other communication shall be deemed to have been given and received on the next following Business Day. Any notice or other communication transmitted by fax or other similar form of electronic communication shall be deemed given and received on the day of its transmission provided that such day is a Business Day and such transmission is completed before 5:00 p.m. on such day, failing which such notice or other communication shall be deemed given and received on the first Business Day after its transmission.

Governing Law

This Agreement shall be governed by the laws in force in the Province of Ontario, Canada, excluding conflicts of laws provisions, and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts located in the Province of Ontario.

Recitals

Each of the parties represents and warrants to each of the others that the recitals set out in the Cloud Terms and Conditions, in the Digital Services Agreement and/or in the Digital Services Proposal, are true and correct in substance and fact, as each such recital relates to each party, and are incorporated as an integral part of this Agreement.

Data Pooling Online T&C

Data Ownership: as between Pinchin and Client, Client exclusively owns all rights, title and interest in and to all Client data. Pinchin does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client data.

No Access to Client data. Client acknowledges that Pinchin does not need, require or have any access to any Client data or any personal information. If Client desires Pinchin to receive and access any Client data, Client shall first obtain the written approval of an executive officer of Pinchin which may be withheld by Pinchin in its sole discretion.

Use of Aggregated and Anonymized Data: notwithstanding any other provision of this Agreement, Client agrees that Pinchin may collect, use, and disclose quantitative data derived from the use of the network services for its business purposes, including providing and supporting the network services and devices, to improve the network services, develop new products and services, to understand usage, industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and anonymized form only and will not identify Client, its end users, Client data, personal information, or any third parties utilizing the network services.

Waiver

No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. No forbearance by either party to seek a remedy for any breach by the other party of any provision of this Agreement shall constitute a waiver of any rights or remedies with respect to any subsequent breach

Language

The parties declare that they have requested and do hereby confirm their request that the present agreement and all documents related thereto be drawn up in English. Les parties déclarent qu’elles ont exigé et par les présentes confirment leur demande que cet acte ainsi que tous les documents qui s’y rapporte soit rédigé en anglais.

Severability

In the event that any provision of this Agreement or any part of any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision or part shall not affect the validity, legality or enforceability of any other provision of this Agreement or the balance of any provision of this Agreement absent such part and such invalid, illegal or unenforceable provision or part shall be deemed to be severed from this Agreement and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision or part had never been inserted in this Agreement.

Proprietary Rights

The Client acknowledges that Pinchin is the sole and exclusive owner of all rights in and to the Software and the Site and the App and all intellectual property which has been used to develop the same, or which may be used to update or modify the same, and that all intellectual property which comprises a part of the Software or the Site or the App, or which Pinchin has created or acquired in the conduct of its business, including, without limitation, all patents, copyrights, trade-marks, trade-names, trade secrets, business methods, source code, internet domains, registrations, artwork, logos, text, pictures, sound, graphics, video, data, the nature of the screen content generated by the Software or the App, the manner in which the Site and the App is organized and presented and the manner in which reports are generated, formatted, organized and presented, the text of reports, and the nature and type of reports generated by the Software or the App and other material (all of the foregoing being referred to as the “Intellectual Property”). Pinchin agrees that all information and materials, however recorded, (including images and data provided by the Client to Pinchin or imported into the Software by or on behalf of the Client shall remain the sole property of the Client at all times and do not form any part of Pinchin’s Intellectual Property.

The Client shall not and shall not permit any third party to, at any time: (a) sublicense, pledge, sell, lease, rent, or otherwise transfer or share its rights under this Agreement; (b) use the Software or Site or App to process or store data for other parties except with Pinchin's prior written consent; (c) disclose any of the Intellectual Property to any third party without Pinchin’s prior written consent; (d) directly or indirectly, use any of the Intellectual Property in connection with the development of computer programs for its own use or use by third parties; or (e) attempt to do any of the foregoing. This clause does not prevent the Client from printing or reproducing the content of screens displayed at the Site or App nor disclosing the same to third parties.

The Client shall at all times treat all of the Intellectual Property as confidential and shall not use it for any purpose other than as contemplated by this Agreement.

The Client shall not, and shall not permit any third party to, at any time, reverse engineer, decompile, disassemble, or create derivative works from the Intellectual Property, or to modify, interfere or corrupt any part of the same in any way, or attempt to do any of the foregoing.

Third Party Intellectual Property

The Client shall not and shall not permit any third party to, at any time: (a) upload, import, host, transfer, or download any intellectual property that it does not own, or that it does not have a specific license to use. The Client shall in no way shape or form use Site or Software or App in such a way that violates the intellectual property rights of a third party.

Indemnity

The Client shall indemnify and hold Pinchin harmless from and against all claims, direct damages, losses, liabilities (whether accrued, actual, contingent or otherwise), demands, suits, judgments, causes of action, legal proceedings, penalties or other sanctions and any costs and expenses arising in connection therewith, including, without limitation, legal fees and disbursements on a solicitor and client basis (including, without limitation, all such legal fees and disbursements in connection with any appeals) suffered or incurred by Pinchin in connection with any breach of this Agreement by the Client, including, without limitation, any breach of any provision of this section entitled "Proprietary Rights" or “Third Party Intellectual Property”.

Accuracy of Information

Pinchin shall make commercially reasonable efforts to keep the files, information, documents, and data (collectively “Files”) it provides to Clients on Site or via the App up to date, but does not warrant the accuracy or completeness of any information or documents provided on Site or via App. Pinchin is in no way whatsoever responsible or liable for any information Client changes, revises, adds to, deletes or otherwise modifies in any way.

Verification of Accuracy

The Client is solely responsible for the verification of the accuracy, completeness, and quality of any data, documents, files, or other information imported to, viewed on, or exported from, Site or via the App and the fitness of Files for the intended purpose of the Client and Client user.

Security Policy

The Client recognizes and agrees that; (i) the Internet and cellular networks are not secure mediums, and neither the privacy of your communications, nor visits to the Site or use the App, can be guaranteed; (ii) the nature of Internet and cellular networks communications means that your communications may be susceptible to data corruption, unauthorized access, interception and delays; (iii) the Site and the App may include incomplete information, inaccuracies or typographical errors; (iv) Pinchin and any other persons involved in the management of the Site or the App may make changes in the information and content included in the Site or the App at any time without notice; (iv) Pinchin shall not responsible for any detrimental reliance you may place on the Site or the App or their contents; and (vi) use of the Site and the App is on an “as is” basis and is strictly at your own risk. Pinchin shall not be responsible for any loss of privacy, disclosure of information, harm, damage, or loss that may result from your transmission of any information to us in any connection with the Site or the App.

Warranties

Notwithstanding any other provision, Pinchin shall make commercially reasonable efforts to keep the Software and Site and App available but does not warrant or guarantee that access to the same shall be uninterrupted.

Client Responsibility

The Client will immediately notify Pinchin if it becomes aware of any failure or errors in the app or site or sensors or monitoring equipment, or any information provided by any of the aforementioned.

Exclusion of Representations, Warranties and Conditions

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND SITE AND APP ARE PROVIDED "AS IS" AND THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED IN FAVOUR OF THE CLIENT, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES OR CONDITIONS AS TO THE PROVISION OF UNINTERRUPTED ACCESS, ABSENCE OF ERRORS IN THE SOFTWARE OR SITE OR APP, PRIVACY OF FILES, SECURITY, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, the appropriateness of the use, output, or results of the use of this software or program in terms of its correctness, accuracy, reliability, currency or otherwise AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING PURSUANT TO STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR TRADE, IN CONNECTION WITH THE SOFTWARE OR SITE OR APP.

Exclusion of Liability

In no event shall Pinchin, its officers, directors, employees, subcontractors or shareholders be liable for direct, indirect, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, special damages, incidental or consequential damages, in connection with the software or the site OR THE APP, including, without limitation, the OPERATION OR MAL-FUNCTIONING OF THE SOFTWARE OR THE APP, acts or omissions on THE part of the client or any third party IN RELIANCE UPON RESULTS GENERATED BY THE SOFTWARE, EVEN IF CAUSED BY pinchin's NEGLIGENCE OR FUNDAMENTAL BREACH, including, without limitation, damages for loss of profits, loss of use or economic loss, even if Pinchin has been advised of the possibility of such damages, or such damages are foreseeable, and regardless of the form of action whether in contract, tort, strict liability, operation of law, or otherwise.

without limiting the generality of the foregoing, regardless of the form of action, whether in contract, tort, strict liability, operation of law, or otherwise, any liability on the part of PINCHIN, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS OR SHAREHOLDERS shall be limited to the amount of access fees that the Client has paid to Pinchin pursuant to this Agreement for the 3-month period prior to the event giving rise to the claim for damages.

The parties acknowledge that Pinchin has set its prices and entered into this Agreement in reliance on the limitations of liability and disclaimers of warranties and damages set forth herein, and that the same form a fundamental and essential basis of the bargain between the parties. They shall apply even if this Agreement is found to have failed in its fundamental or essential purpose or been fundamentally breached.

Duplication/Conflict

Some provisions of these Cloud Terms and Conditions may be duplicated on your Digital Services Agreement. If there is any conflict, inconsistency, ambiguity, or difference between any provision of these Terms and Conditions and your Digital Services Agreement, or any other agreement or order, these Terms and Conditions shall prevail/replace the provisions of the Digital Services Agreement, or any other agreement or order, only to the extent necessary to eliminate such conflict, inconsistency, ambiguity or difference.

Changes to Terms and Conditions

Notwithstanding the Amendment provision in the Agreement, Pinchin may at its exclusive discretion modify, add, or delete (“Change”) the Terms and Conditions posted herein at any time without notice. Your continued use of the Site or the App is an acknowledgment that you agree to the Terms and Conditions posted herein and to any subsequent changes to the Terms and Conditions. If you do not agree with any term or condition posted herein, you shall immediately cease from accessing and using the Site and/or Software and/or App.

Entire Agreement

This Agreement, inclusive of the Digital Services Agreement and/or Digital Services Proposal, contains the complete and exclusive statement of the Agreement between the parties with respect to the subject matter of this Agreement and supersedes all proposals, negotiations, representations and warranties of any kind whether written or oral. Nothing in this Agreement shall limit, restrict, supersede or otherwise affect any other written agreement that Pinchin and the Client have entered into prior to the date of this Agreement.