Version 4.1 - Updated on 21/10/2020
This agreement (the 'Agreement') is a legal agreement between you ('Customer' or 'you') and INFINITY TRACKING LIMITED a company registered in England and Wales under company number 07192131 and having its registered office at Seebeck House 1 Seebeck Place, Knowlhill, Milton Keynes, Buckinghamshire, United Kingdom, MK5 8FR ('Infinity Tracking' or 'we') for the Service(s) (as defined below), which includes computer software, the data supplied with it, the associated media, printed materials and online documentation (the 'Documentation').
1.1 "Act" means the Telecommunications Act 1984 (including any modification or re-enactment of the statute and all legislation, orders and regulations issued under that statute or passed or made in substitution for the same).
1.2 "Action(s)" means and Tracking Events and/or an Offline Action.
1.3 "Automatically Provisioned Numbers" and "Automatic Provision" mean any Telephone Number(s) automatically provisioned by the Infinity Tracking Code in accordance with clause 3.11.
1.4 "Business Day" shall mean the hours between 9:00 am and 5:00 pm London Time, Monday to Friday excluding UK bank holidays.
1.5 "Call" shall mean a two-way voice communications session connecting a Caller's telephone to a Customer's telephone.
1.6 "Call Detail Records" means all and any data relating to an individual call (including but not limited to the Caller ID, the number called, the time, date and duration of the call, the disposition of the call and lead and sales data) but excludes the actual call recording.
1.7 "Caller" shall mean a person who dials a call via a Call Tracking Number.
1.8 "Caller ID" shall mean the caller identification telephone number, as provided by the Caller's Local Exchange Carrier, where and when available.
1.9 "Call Recording" shall mean a computer based recording of a Call, stored on the Infinity Tracking Platform.
1.10 "Call Tracking Number" shall mean a telephone number assigned by Infinity Tracking that a Caller may dial to be connected to Customer at the Destination Telephone Number.
1.11 "Code" means any code of practice issued by PhonepayPlus relevant to Service(s), that may be issued from time to time and any code of practice issued by OFTEL or OFCOM in relation to telecommunication services or the Numbering Code or Numbering Conventions.
1.12 "Cost per Call" means the service fee if applicable for any and all calls lasting one (1) second or more.
1.13 "Confidential Information" shall mean: (i) information or material that gives or could give the disclosing party some competitive advantage or the disclosure of which could be detrimental to the disclosing party's interests; (ii) all information (in writing or otherwise) concerning the disclosing party (including, without limitation, information concerning the disclosing party's business, assets, liabilities, operations, affairs, financial condition, projections, contracts, customers, products, ingredients, formulations, plans, prospects or government or agency investigations) which is not generally known by the public. Without limiting the generality of the foregoing, Infinity Tracking acknowledge that the information that Infinity Tracking obtains about any Customers in the course of providing the Services shall be considered Confidential Information. Notwithstanding the above, "Confidential Information" does not include any information or material that (i) is or becomes public knowledge otherwise than by an act or omission of the receiving party; (ii) is or becomes available to the receiving party without an obligation of confidence from a source (other than the disclosing party) having the legal right to disclose the information; or (iii) is already in the receiving party's possession in documented form without an obligation of confidence.
1.14 "Default" means any breach of the obligations of either party (including but not limited to fundamental breach or breach of a fundamental term) or any default, act, omission, negligence or statement of either party, its employees, agents or sub-contractors in connection with or in relation to the subject matter of this Agreement and in respect of which such party is liable to the other.
1.15 "Destination Telephone Number" shall mean the telephone number designated by the Customer to receive Calls when a tracking number is called.
1.16 "Fees" means the one-off and monthly fees payable for use of the Service(s) as quoted by Infinity Tracking in writing to the Customer (except in cases of obvious error) and accepted by returning the signed Infinity Tracking Order Form.
1.17 "Toll Free Number" shall mean an 800 type service that is free to the caller where available.
1.19 "Infinity Tracking Platform" shall mean Infinity Tracking's Portal tracking systems and API service.
1.20 "Inbound Channels" means lines used to receive inbound calls to Infinity Tracking's network.
1.21 "Intellectual Property Rights" means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
1.22 "Local Number" shall mean an local Telephone Number where available.
1.23 "Manually Provisioned Numbers" and "Manual Provision" mean any Telephone Number(s) provisioned when a User requests a number through the Infinity Tracking Platform in accordance with clause 3.12
1.24 "Minimum Term" means a minimum term of this Contract which is 1 month for Infinity Call Tracking Standard, 3 Months for Infinity Call Tracking Professional, 12 Months for Infinity Call Tracking Enterprise Editions and 12 Months for Infinity Hosted PBX
1.25 "Minute Charges" means all and any minute charges and minimum minute charges as set out the Infinity Tracking call tariff located on our website. https://www.infinity.co/knowledge-base/article/call-tariff. Unless specifically stated as different in the Order Form.
1.26 "Modification" means any version of the Service and any release of the Software which corrects faults, adds functionality (whether requested by the Customer or not) or otherwise amends or upgrades the Service or Software.
1.27 "Non-geographic Number" shall mean an 08 or 03 prefixed telephone number for the UK or any Toll-Free number for the US.
1.28 "Offline Action" means connection of a Call to the Destination Telephone Number and optional Operator Call Rating.
1.29 "Tracking Events" means (i) the occurrence of a tracking trigger which will be a page view on an event sent into our platform through the API or triggered from the web page which may include (without limitation) completion of an online form, downloading a specific file.
1.30 "Operator" shall mean a person who answers Calls on behalf of Customer, regardless of the title given to such person by Customer.
1.31 "Operator Call Rating" shall mean a selection of options read out to the Operator at the end of the call in order for the operator to rate the call. The call rating and any transaction value information will be stored on the Infinity Tracking Platform for any user to view.
1.32 "Order" shall mean a request for Service submitted by the Customer to Infinity Tracking, including but not limited to the submission of order data to Infinity Tracking's website or Infinity Tracking's Platform or to Infinity Tracking via email.
1.33 "Order Form" means the Infinity Tracking Order form which details the quoted service and fees to the Customer
1.34 "Originating Telephone Number" shall mean the Caller's telephone number.
1.35 "Personal Data" has the meaning set out in Part 1 Section 3(1) of the Data Protection Act 2018 and relates only to personal data, or any part of such personal data.
1.36 "PhonepayPlus" - means PhonepayPlus, Federal Communications Commission or any other independent body appointed to supervise and administer telephone information services, and which is recognised by the Director General of Telecommunications (or anybody that shall take its place), as an appropriate body to apply and administer the Code.
1.37 "Service(s)" shall mean the Infinity Tracking service described in clause 3.1.
1.38 "Setup Date" We will setup your account ready for this date, at this point you will have access to our portal where you can download your installation code to install and test in your site. You will be charged the monthly fees from the Setup Date.
1.39 "Users" shall mean an authorised Customer representative who accesses the Infinity Tracking Platform.
2.1 In consideration of payment by you of the agreed Fees and you agreeing to abide by the terms of this Agreement by signing the Infinity Tracking Order Form, Infinity Tracking hereby grants to you a non-exclusive, non-transferable licence to use the Service(s) selected by you and the accompanying Documentation in the UK on the terms of this Agreement.
3.1 Service Description - The Infinity Tracking Service. The Infinity Tracking Service uses an advanced visitor level call tracking solution, which means it will, subject to certain technical and other limitations, track every visitor to your websites and all interactions with your website, so that Infinity Tracking can determine when a visitor calls you what marketing source or sources they came from.
3.2 Online Service Provisioning. You may use the Infinity Tracking Platform, to activate, modify, or otherwise configure specific aspects of the Service(s) you have ordered.
3.3 Acceptance by Infinity Tracking on receipt of a signed Infinity Tracking Order Form by both parties.
3.4 Your Responsibility. You are responsible for any Customer responsibilities indicated in this Agreement.
3.5 Compliance with Laws. You shall not knowingly permit the Services to be used in violation of any applicable laws or regulations.
3.6 Equipment Changes. Infinity Tracking may from time to time make changes to equipment used to handle calls and provide the Service. Such changes are at the sole discretion of Infinity Tracking, and may be made without prior consent from you.
3.7 Tracking Numbers. Infinity Tracking shall provide you with network service and Call Tracking Numbers, but notwithstanding this Infinity Tracking is not obliged to supply specific Call Tracking Numbers that may be requested by you. Infinity Tracking may also change numbers supplied to you if this is required for regulatory, statutory or legal reasons, and in such instance shall notify you as soon as is reasonably practical. Notwithstanding the above provisions of this clause.
3.8 Fair Usage for Tracking Numbers - Fixed and Offline Tracking Numbers are provided on the basis that you must receive at least 10 calls per month per Call Tracking Number (the "Fair Usage Policy"). A Fair Usage policy applies which is defined as a minimum of 10 calls received inbound per number per month at the standard Cost per Call service charge as set above.
UK example, if you only have 8 calls to a specific number within a billing month then you will be billed a further 2 calls at a fixed rate of 10p, 2 x 10p so a Fair Usage Charge of 20p for that number.
US example, if you only have 8 calls to a specific number within a billing month then you will be billed a further 2 calls at a fixed rate of 25¢, 2 x 25¢ so a Fair Usage Charge of 50¢ for that number.
3.9 Fair Usage - Tracking Events. You are required to affect at least 1 phone call per month for every 1,000 Tracking Events per month. In the event that the call requirements are not achieved in any month, Infinity Tracking shall be entitled to charge you for Fair Usage for Tracking Events in one of the following ways:
3.9.1 charged at a Cost per Million Tracking Events as stated in the order form.
3.9.2 or if there is no specific separate charge for Tracking Events stated in the order form then Fair Usage for Tracking Events will be raised at the rate of 10p or 25¢ per 1,000 Tracking Events.
UK example, if you have 800 calls in a month this will cover Tracking Events of up to 800,000 for that month. If the for the month 900,000 Tracking Events have be tracked then Fair Usage would apply to 100,000 tracking events at a rate of 10p per 1,000 Tracking Events. So a Fair Usage bill of 100 x 10p = £10
US example, if you have 800 calls in a month this will cover Tracking Events of up to 800,000 for that month. If the for the month 900,000 Tracking Events have be tracked then Fair Usage would apply to 100,000 tracking events at a rate of 25¢ per 1,000 Tracking Events. So a Fair Usage bill of 100 x 25¢ = $25
3.10 Provisioning Call Tracking Numbers. You shall designate Users who may manually access the Infinity Tracking Platform to provision (set up) Call Tracking Numbers directly through the Infinity Tracking Platform. In addition, Call Tracking Numbers will be automatically provisioned when you install any Infinity Tracking Code on any website and such website requests that a Call Tracking Number be provisioned. Once activated, any fees associated with all Call Tracking Numbers shall be billed to you. Subject to any limitations specified in the Order, you may delete Manually Provisioned Numbers using the Infinity Tracking Platform and may request deletion of Automatically Provisioned Numbers by emailing the Infinity Tracking Service Desk.
3.11 Selecting Call Tracking Numbers. You may request/provision Call Tracking Numbers from Infinity Tracking's number inventory, in which case Infinity Tracking shall use commercially reasonable endeavours to promptly activate the Service for the requested number.
3.12 Terminating Numbers. You shall designate the Destination Telephone Number for each group of Call Tracking Numbers and/or for any individual Call Tracking Numbers as appropriate.
3.13 Withdrawal of Manually or Automatically Provisioned Numbers. Except as otherwise provided in this Agreement, and subject to payment of the Fees payable under this Agreement, and the availability of certain types of Telephone Number from its third party service providers, Infinity Tracking agrees that upon Manual and/or Automatic Provision of a Telephone Number to you that Infinity Tracking shall not withdraw such numbers from you during the term of this Agreement or any extensions thereof.
3.14 Portability of Numbers. You acknowledge that not all Telephone Numbers can be assigned and such numbers can only be ported to networks with the required porting agreements. However, Infinity Tracking agrees that upon termination or expiration of this Agreement for any reason, upon your request, Infinity Tracking shall use reasonable endeavours to seek an assignment of the Telephone Numbers to you or any other provider identified by you. Any costs charged by third parties for porting numbers shall be borne by you and Infinity Tracking will charge a £15.00 or $25.00 administration fee per number ported. You acknowledge that Infinity Tracking's ability to port any numbers is strictly subject to and reliant upon your prompt and accurate completion of any actions reasonably assigned by Infinity Tracking to you (including but not limited to the submission of correspondence to your telecommunications provider).
3.15 Availability of Numbers. You acknowledge that the availability of any requested Telephone Number is strictly subject to the availability of such numbers from Infinity Tracking's third party service providers and Infinity Tracking provides no warranty or representation that any such numbers will be available.
3.16 Reporting. Infinity Tracking shall use commercially reasonable endeavours to provide 24/7 access to its online reporting through the Infinity Tracking Portal. You may export reporting data for analysis using CSV file formats.
3.17 Call Recording. Infinity Tracking provides a call recording capability which you may elect to use to record communications over call tracking lines. For calls in which the call recording feature has been activated by you, you may play an announcement to the Caller indicating that calls may be recorded for quality or training purposes or such other message, at your cost and expense, as may be required by you, which may be different depending upon the jurisdiction in which the call is made. You acknowledge that Call Recording can only be utilised by the Customer taking the calls and not any third party unless express prior written consent has been obtained.
3.18 Operation. Infinity Tracking shall host, operate, administer, and maintain the Service in accordance with the terms of the Agreement.
3.19 Other Services. Infinity Tracking shall provide such other professional services for integration, customisation, training, or other purposes as may be ordered in an Order accepted by Infinity Tracking.
4.1 Provision of Information. You shall provide Infinity Tracking on request with information or material regarding the service operated through Infinity Tracking upon and to the extent of any reasonable request made by Infinity Tracking.
4.2 Customer Use of Services. You shall not use the Services for any unlawful purpose whatsoever including the transmission or offering of any information or services which are unlawful, abusive, harmful, threatening, defamatory, or which in any way infringe copyright, intellectual property rights, trademarks, or which is pornographic, or any other material that may cause offence in any way.
4.3 Indemnification. You specifically agree to indemnify Infinity Tracking against all costs and liabilities arising out of all claims which result from, or involve an allegation of, any breach of clause 4.2.
4.4 Customer Complaints. You shall co-operate with Infinity Tracking in relation to any complaints, enquiries or investigations regarding services offered by you. You shall, at the discretion of Infinity Tracking, without limitation bear in full any costs associated with such complaints, investigations, or enquiries or any action whether or not brought by or against Infinity Tracking.
4.5 Specific Tracking Numbers. You are responsible for ensuring that no third party Intellectual Property Rights are infringed by your choice of telephone number for a particular service and indemnify Infinity Tracking against all costs and liabilities arising out of a breach or allegation of a breach of any such third party's Intellectual Property Rights.
4.6 Necessary Approvals. You shall ensure that you have all necessary approvals, permissions or authorisations for the services operated through Infinity Tracking. You shall be responsible for the content of services offered, and for ensuring that these services comply with the Code, the Act and this Agreement. Infinity Tracking may recover from you as a debt immediately due and payable all fines, claims or administrative expenses resulting charged by PhonepayPlus (or any other regulatory body approved by the Director General of Telecommunications), resulting from a breach of the Code, unless the acts or omissions of Infinity Tracking contributed to such breach in which case the amount which Infinity Tracking shall be entitled to recover shall be reduced by reference to the seriousness and impact of such act or omission which contributed to such breach. The amount of such reduction shall be negotiated in good faith by the parties.
5.1 Service Levels and Limited Remedy. Infinity Tracking shall use reasonable commercial endeavours to provide the Service in accordance with the Service Levels specified in this clause 5.
5.2 Service Interruptions or Issues and Technical Support. To report issues related to Service performance or to request support, you may contact Infinity Tracking by logging a service ticket with Infinity Tracking's Service Desk by sending an email to email@example.com, or by calling 0844 488 0999 or such other numbers as Infinity Tracking may furnish in other countries. In order for Infinity Tracking to investigate any reported issues, you agree to provide Infinity Tracking with such supporting information as Infinity Tracking may reasonably request, which may include (as applicable), without limitation, IP address(es), originating phone number and terminating phone number. The Service Desk will help you keep track of tickets Ticket(s). This will allow for prompt and accurate resolution to any issue that may arise in accordance with clause 5.3. After entering in a service ticket, you will get immediate confirmation that the Client Services and Technical Support teams have received your request.
5.3 Service Ticket Priority Levels and Response Times. Infinity Tracking shall use reasonable commercial endeavours to provide identification and resolution, obviation and/or mitigation (including provision of a temporary workaround) of bugs or errors reported by you in the then current version of the Service subject to any limitations imposed by contractual restrictions of any third party. Without limiting the generality of the foregoing, Infinity Tracking shall use reasonable commercial endeavours to resolve problems within the timeframes stated below based upon service ticket priority levels (as reasonably determined by Infinity Tracking in consultation with you):
5.3.1 Priority 1 - Priority 1 is assigned to issues in which the entirety of the Service(s) is unusable and has stopped operations. No reasonable circumvention or fix is available to the Customer. Infinity Tracking will focus all reasonably required resources to correct reported service defects in the Services(s) as soon as is reasonably practicable.
5.3.2 Priority 2 - Priority 2 is assigned to issues in which Customers have experienced a partial failure of an important service feature, but can operate the system at a reduced level of efficiency or performance. This includes operations that are functional but require intervention or workaround. Infinity Tracking shall use reasonable efforts to correct reported service defects within 2 (two) Business Days of date and time reported. For the avoidance of doubt, the failure of individual numbers shall fall within this Priority 2 category unless more than 10 (ten) numbers have failed at once, in which case such failure shall be considered a Priority 1 failure.
5.3.3 Priority 3 - Priority 3 is assigned to Customers who experience minor impacts on functionality and production is not affected and/or an acceptable "workaround" is available which allows connections to continue. Infinity Tracking shall use reasonable efforts to correct reported service defects within 5 (five) Business Days of the date reported.
5.4 Service Maintenance. Infinity Tracking or any of its suppliers or sub-contractors may without liability, prior warning or your consent, suspend the service, in the event that it wishes to carry out maintenance, upgrade works, or back-ups. Infinity Tracking will use all reasonable endeavours to minimise the duration of the suspension and also to inform you in advance of any suspension.
5.5 Notification. In the event that you become aware of any faults with the service, you shall notify Infinity Tracking as soon as is practicably possible.
5.6 Suspension. The Service may be suspended should Infinity Tracking become aware that you (or any User(s)) are using or are likely to use the Services in any way which may be interpreted as illegal, immoral or otherwise disreputable, or likely to expose Infinity Tracking to unacceptable risks. Infinity Tracking shall use commercially reasonable endeavours to promptly provide you with notice of any suspension and to limit any suspension only to your affected accounts.
5.7 Network Disruption. In the event of your network causing material disruption to Infinity Tracking, Infinity Tracking reserves the right to immediately terminate, block or suspend communication to protect network integrity, provided that you have been notified in writing (which may include email). Communication will be reinstated once your network problem has been resolved.
5.8 Service Testing. Infinity Tracking shall perform such tests as Infinity Tracking may, in its sole discretion, determine are appropriate in order to test the availability of the Service.
5.9 Network Redundancy. Infinity Tracking shall use reasonable commercial endeavours to maximise Service availability by operating at least two geographically separated servers. In the event of failure of one server, then the second server will commence operations. Infinity Tracking shall use reasonable commercial endeavours to maintain sufficient capacity such that 99.9% of expected call tracking traffic can be carried despite the loss of a server.
5.10 Service Availability. Service availability shall be defined as the availability of Infinity Tracking's servers to route calls and the availability of Infinity Tracking's gateways to bridge calls from Callers to Customers' Destination Telephone Numbers.
5.11 Service Level Goal. Infinity Tracking shall use commercially reasonable endeavours to achieve a Service Level of 99.9% availability during every calendar month of Service.
5.12 Tracking and Call Service Minimum Service Level. Failure by Infinity Tracking to deliver at least 99.5% system availability in respect of the tracking and call Service during one calendar month shall be considered a material breach of the Agreement unless occasioned by a force majeure event as described in clause 11.2 of the Agreement.
5.13 Reporting Service Level. Failure by Infinity Tracking to deliver at least 99% system availability in respect of the Infinity Tracking Portal and API Service during one calendar month shall be considered a material breach of the Agreement unless occasioned by a force majeure event as described in clause 11.2 of the Agreement.
5.14 Disaster Recovery. Infinity Tracking shall use commercially reasonable efforts to restore Service within 24 hours if all servers are destroyed or incapacitated.
5.15 Number Availability. Infinity Tracking shall use commercially reasonable endeavours to maintain an inventory of numbers.
5.16 Infinity Tracking operate a quarantine process to eradicate wrong number calls. Infinity Tracking provision all our numbers initially after being obtained from our carrier to our own quarantine and monitor them for a periods of time. During this period if a number receives a call, the quarantine period for that number is extended for 30 days. When the quarantine period elapses with no calls occurring in that time, the number is moved to the available pool for use with customers. If whilst the number is in the available pool it receives a call then it is moved back to the quarantine and the quarantine process begins again. If a number starts receiving wrong number calls at any point our policy is that we replace it once informed by the customer. Please email our Service Desk quoting the phone number that needs replacing and we will replace this within 48 hours.
5.17 Local Exchange Carrier Performance. Downtime on the part of local telephony networks serving either Callers' Originating Telephone Numbers or Customers' Destination Telephone Numbers is not under Infinity Tracking's control. Accordingly, downtime on the part of local telephony networks shall not be included in measuring downtime or availability.
6.1 Confidentiality. Each party will refrain from using the other's Confidential Information except as contemplated by this Agreement and from disclosing such Confidential Information to any third party. The parties will, in a commercially reasonable manner, store and protect the other party's Confidential Information from unauthorised access. However, each party may disclose Confidential information of another party: (1) pursuant to the order or requirement of a court, administrative agency, or other government body, provided that such party give reasonable notice to the other party to contest such order or requirement; or (2) on a confidential basis to legal and financial advisers and institutional investors under appropriate non-disclosure agreements.
6.2 Privacy. Infinity Tracking shall comply with privacy laws and regulations within the areas in which it provides Service. Infinity Tracking has and shall at all times maintain appropriate technological and organisational measures to protect Personal Data from unauthorised or unlawful processing of the Personal Data and against the loss, or destruction of or damage to the Personal Data.
6.3 Collection and Use of Personal Data. The obligations of the parties with respect to Personal Data are set out in Schedule 1.
7.1 The Customer shall be invoiced the Setup Fees on signing of the Order Form.
7.2 The Customer shall be invoiced the Service Fees Monthly in arrears.
7.3 The Customer shall be invoiced the Cost per Call Fees if applicable Monthly in arrears.
7.4 The Customer shall be invoiced the Minute Charges Fees if applicable Monthly in arrears.
7.5 Infinity Tracking shall be entitled to raise an invoice for Additional Fees as and when they fall due.
7.6 The Customer shall pay all invoices within 30 days' of the date of the invoice.
7.7 The Fees are payable in Pounds Sterling and are exclusive of VAT, which shall be paid by the Customer at the rate and in the manner prescribed by law.
7.8 If any Fees are not paid by the due date for payment, then (without prejudice to Infinity Tracking's other rights and remedies) Infinity Tracking reserves the right to:
7.8.1 Charge statutory interest on that sum on a daily compounded basis (before as well as after any judgment) at the then prevailing rate, and/or
7.8.2 At Infinity Tracking's sole discretion, suspend any or all of the Service and / or Support.
7.9 Call Share Revenue - On numbers were a Call Share Revenue has been agreed.
7.9.1 Infinity Tracking uses the Customs and Excise “self billing” option. This involves Infinity Tracking raising an invoice on itself where a payment is due. You would receive the self-bill tax invoice and payment would be made automatically into your specified bank account.
7.9.2 All payments will be paid 30 days after your self-bill tax invoice date.
7.9.3 Infinity Tracking reserve the right to withhold payment of the Call Share Revenue in the event that the Customer's account is in arrears.
7.9.4 An Agreement to Self-Billing form will need to be completed before Infinity Tracking can pay the Call Share Revenue.
8.1 Limited Warranty. Infinity Tracking cannot provide a fault free Service. Infinity Tracking gives no warranty that its network or services shall be continuous, or will be free from faults. Infinity Tracking will, however, take steps to ensure its network and services are reasonably fault free, and that service is reasonably uninterrupted. Infinity Tracking further warrants as follows: (a) that the Services provided to you will be performed by qualified personnel in a professional manner, (b) the Services will be provided in compliance with all applicable or regulations, or (c) the Services do not infringe on any UK patent, copyright, trademark, trade secret, or other intellectual property right under the law of those jurisdictions within which the Service is provided. In the event of any breach of the warranty in this clause 8.1 You shall notify Infinity Tracking and Infinity Tracking shall reform the Services so as to comply with the warranty above, as soon as reasonably practicable having regard to the level of business impact being sustained by the Customer, but in any event within 30 days of notification from you, and the re-performance of such Services shall, if correctly undertaken, be your sole remedy in respect of breach of the warranty in this clause 8.1. Except as expressly stated in this Agreement, all other warranties and conditions, whether express or implied, by statute, common law or otherwise, are hereby expressly excluded to the extent permitted by law.
8.2 Indemnification. Infinity Tracking will indemnify, defend and hold you harmless from any damages, costs and reasonable attorneys' fees you incur from any claim that (a) the Services as provided to you infringe any UK or EU patent, copyright, trademark, trade secret, or other intellectual property rights under UK or EU law or (b) arising from Infinity Tracking's breach of this Agreement. You will indemnify, defend and hold Infinity Tracking harmless from any damages, costs and reasonable attorneys' fees Infinity Tracking incurs from any claim arising from the use of the Services by you (unless resulting from Infinity Tracking's act or omission), your combination of the Services with other products or services not provided by Infinity Tracking, or your modification of the Services if such modification was not approved by us in writing. The indemnifying party shall conduct the defence and shall have control of the litigation; the other party shall give prompt notice of claims and shall cooperate in defending against the claim. Notwithstanding the foregoing, no settlement or compromise may be entered into by the indemnifying party if such settlement or compromise adversely impacts the indemnified party.
8.3 Limitation of Liability.
8.3.1 Neither party excludes or limits liability to the other for (a) death or personal injury caused by its negligence; or (b) deceit or fraudulent misrepresentation for which that party is liable at law.
8.3.2 The total aggregate liability of each party for loss in respect of Defaults (other than those governed by clause 8.3.1) shall in no event exceed the fees paid for the month immediately prior to the event giving rise to the Default.
8.3.3 The parties expressly agree that should any limitation or provision contained in this clause 8 be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
8.3.4 Without prejudice to clause 8.3.1, in no event shall Infinity Tracking be liable in contract, tort (including negligence) or breach of statutory duty or otherwise howsoever for (i) any increased costs or expenses; (ii) any loss of profit, business, goodwill, contracts, revenues or anticipated savings; or (iii) any special, indirect or consequential loss or damage of any nature whatsoever, whatever the cause thereof arising out of or in connection with the provision of the Services.
8.3.5 Infinity Tracking shall not be liable in any way for any losses caused by your failure to perform your obligations under this Agreement and/or undertake reasonable disaster recovery procedures including (without limitation) any failure of you to make adequate provisions for recovery of lost or corrupted data or files and you shall indemnify and defend Infinity Tracking and its employees and representatives in respect of any claims by third parties which are occasioned by or arise from any of Infinity Tracking's acts or omissions pursuant to the instructions of you or your authorised representatives.
8.3.6 The parties hereby acknowledge that:
220.127.116.11 the specification of the Services and duties of Infinity Tracking as contained in this Agreement accord with their expectations and are fair and reasonable;
18.104.22.168 the Service was not designed for your individual requirements, and it is up to you to decide if the Service provided by Infinity Tracking is of satisfactory quality and fit for the purpose for which it is used. Infinity Tracking is reliant on a third party for delivery of Inbound Channels, and therefore Infinity Tracking accepts no liability of whatever nature for any delay in provision of the same.
22.214.171.124 some limitation of liability is to be expected; and
126.96.36.199 the limitation of liability for breach of the warranties set out in this Agreement and duties so specified is fair and reasonable in the light of:
188.8.131.52.1 the price and/or charges to be paid;
184.108.40.206.2 the nature of the Services; and
220.127.116.11.3 the special provisions for remedying any defects in the Services inherent in this commercial context.
18.104.22.168 the limitation of liability does not limit the party's indemnification obligations governed clause 8.2.
8.4 Time shall not be of the essence in this Agreement.
8.5 Infinity Tracking shall have no liability to you in respect of any demand or claim where:
8.5.1 the demand or claim arises as a result of your negligence, misconduct or breach of this Agreement;
8.5.2 you do not promptly notify Infinity Tracking of any demand or claim and such failure to promptly notify materially prejudices the ability of the indemnifying party to provide such indemnity;
8.5.3 If you do not give Infinity Tracking full authority to deal with the demand or claim, or do not provide all information requested by Infinity Tracking and complete and provide full and proper co-operation to allow the other party to defend the claim.
9.1 This Contract shall commence from the Setup Date as stated in the Infinity Tracking Order Form and agreed by both parties and shall continue until terminated in accordance with this Clause 9.
9.2 Infinity Tracking shall be entitled to terminate this Contract on or after expiry of the Minimum Term by giving to the Customer not less than thirty (30) days prior written notice, such notice to take effect on the last day of a calendar month.
9.3 The Customer shall be entitled to terminate this Contract on or after expiry of the Minimum Term by giving not less than seven (7) days prior written notice to Infinity Tracking at any time, provided that the Customer shall remain liable to pay the Monthly Fees in full until the last day of the then current calendar month, or the next calendar month if the notice is given less than seven (7) days prior to the end of the month. For the avoidance of doubt if notice was given on the 27th of September then the termination date would be October the 31st.
9.4 Infinity shall be entitled to terminate the Contract immediately:
9.4.1 if the Customer commits any material breach of the Contract and fails to remedy that breach within thirty (30) days' written notice of that breach (the thirty (30) day period only applies where a breach is capable of remedy – if it is incapable of remedy, the Contract may be terminated by written notice immediately); or
9.4.2 if the Customer becomes bankrupt, insolvent, or a court or arbiter with authority to so determine, determines that it is unable to pay its debts.
9.5 Termination for Cause. Either party may terminate this Agreement if the other fails to cure a material breach of the Agreement within thirty (30) days after receiving written notice of the breach.
9.6 Immediate Termination Rights. A party may terminate this Agreement with immediate effect by giving notice at any time, if:
9.6.1 the other party ceases trading, convenes a meeting of, or comes to an arrangement with its creditors, has distress or other seizure levied over any of its assets or does not satisfy any demand for payment from any legal person; or
9.6.2 any step is taken to wind up or dissolve the other party, a receiver, and/or manager or administrator appointed over any assets; or
9.6.3 Infinity Tracking believes you have allowed services to be used for any unlawful purpose or any use prohibited by this Agreement. In addition, Infinity Tracking may terminate this Agreement with immediate effect by giving notice at any time, if Infinity Tracking or you, are instructed by, or receive any serious complaint or objection from any carrier with whom it contracts, PhonepayPlus, OFTEL, or any other regulatory or governmental body.
9.6.4 Infinity Tracking believes you are using the service for call spamming, using robo dialer software or similar.
9.7 Effect of Termination. Any termination shall be without prejudice to the rights and obligations accruing up to and including the date of termination. Termination of this Agreement shall not result in the termination of any obligation, which by its terms or nature, survives such termination including but not limited to clauses 6, 8, 10 and 11.
9.8 On termination of this Contract (howsoever caused):
9.8.1 Infinity Tracking shall not be responsible for retaining any of the Customer's data and Infinity Tracking shall, subject to Sub-Clause (iii) below delete all data created or stored by the Customer within Infinity's applications and servers;
9.8.2 Infinity Tracking shall not restore, provide storage media or send out any data pertaining to terminated accounts unless expressly requested to do so by the Customer, and provided such data has not already been deleted, subject to an additional fee to be agreed;
9.8.3 Infinity Tracking shall be entitled to continue to process and retain Data for so long as is required or as may be necessary for the purpose of defending any legal proceedings that may be brought against it and / or as is required by law or any regulatory body or recommended by any relevant code of practice;
10.1 Non-Disclosure. Any information or documentation disclosed between the parties during the performance of this Agreement shall be subject to the terms and conditions of the applicable non-disclosure agreement then in effect between the parties.
10.2 Reservation of Rights. You acknowledge that Infinity Tracking shall retain all Intellectual Property Rights in and to the Service, the Software used to provide the Service, and any Modifications and enhancements thereto, and you shall have no rights in or to the Service or the Software other than the right to use it in accordance with the terms of this Agreement. Except as expressly provided herein, nothing contained herein shall be interpreted so as to transfer any right, title or interest in any intellectual property right of Infinity Tracking, nor to grant you any rights or licenses in any intellectual property right of Infinity Tracking.
11.1 Notices. All notices given by you to us must be given to Infinity Tracking Limited, 31 London Road, Reigate RH2 9SS or our e-mail address firstname.lastname@example.org. We may give notice to you at either the e-mail or postal address you provided to us when purchasing the Service. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11.2 Force Majeure. If the performance of any obligation hereunder is interrupted, delayed, fails and/or is interfered with by reason of any circumstances beyond a party's reasonable control, including but not limited to acts of God, labour strikes and other labour disturbances, power surges or failures, disturbance to power supplies or the act or omission of any third party, non-performance by suppliers or subcontractors, inclement weather, storm, flood, drought, lightning, fire, shortage of power, disconnection damage or disturbance to telecommunications connections and cables, trade dispute, government action, embargoes, termination of or refusal to grant a licence, damage to or loss of equipment or interruption, failure or delay in any service provided to us by any third party including governmental or regulatory authority or telecommunications operator, war, military operations, or riot, the party shall be excused from such performance to the extent necessary, provided the party shall use reasonable efforts to remove such causes of non-performance.
11.3 Assignment. This agreement may be assigned by either party by the operation of law, but may not otherwise be assigned without the written permission of the other party (which shall not be unreasonably withheld, conditioned or delayed).
11.4 Public Announcements. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except as provided in clause 2.1 or as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction.
11.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of England and Wales, without regard to its rules concerning conflicts of law; and shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.
11.6 Entire Agreement. The terms and conditions of this Agreement and the Order(s) supersede all previous agreements, proposals, or representations related to the Services. This Agreement sets forth the entire agreement and understanding between the parties pertaining to the subject matter hereof and supersedes all prior written or oral agreements between them.
11.7 Modification of Agreement. This Agreement, including its attachments, may be amended, modified, or updated from time to time by Infinity Tracking.
11.8 Privacy. The parties to this agreement are independent contractors and nothing in this agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
11.9 Order of Precedence. In the event of any conflict between this Agreement and the terms and conditions of any Order, the order of precedence is as follows: (1) this Agreement, and (2) the Order.
11.10 No Waiver. The rights of each party hereto arising out of any provision of this Agreement or any breach thereof shall not be waived except in writing. Any waiver by a party to the Agreement of its rights under this Agreement or of any breach of this Agreement shall not be construed as a waiver of any other rights or remedies of any other or further breach.
11.11 Partial Invalidity. If any provision of this Agreement shall be declared invalid or unenforceable under applicable law, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the parties shall promptly attempt to negotiate a substitute therefore that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each party under this Agreement as originally executed.
11.12 No Third Party Beneficiaries. A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement.
11.13 Errors. Any error, omission or typographical error in any website page, quotation, offer, sales information, invoice, or document supplied by Infinity Tracking shall be subject to correction on notice from Infinity Tracking and without liability.
11.14 Modification. Infinity Tracking may vary any provision in this Agreement, without prior consent from you, if such change is required because of regulatory, insurance, safety or statutory changes made after the date of this Agreement. Infinity Tracking shall in such circumstances give you 30 days notice of such changes. You shall have the right by giving notice in writing to Infinity Tracking to terminate this Agreement, within 14 days of receiving such notice. This Agreement would then be terminated within 30 days of such notification, or on a later date specified by you.
11.15.1 During the term of this Agreement and for a further period of 12 months after its termination howsoever caused, you agree that you will not employ or entice to leave or otherwise contract with employees of Infinity Tracking without our prior written consent upon each occasion.
11.15.2 In the event of any breach of clause 11.15.1, then you will pay to Infinity Tracking by way of liquidated damages (and not as a penalty) an amount equal to 40% of the final first year's gross salary as the case may be of the person so employed. The parties hereby acknowledge and agree that this formula is a reasonable assessment of the costs or loss of income which would be incurred as a result of the Customer's breach of clause 11.15.1
DEFINITIONS AND INTERPRETATION
1.1 Unless the context requires otherwise, capitalised terms used in this DPA have the meaning given to them below or in the Terms and Conditions above. Where capitalised terms are used in this DPA but are not defined below then such terms have the meaning given to them in the Data Protection Legislation.
Customer Personal Data: the Personal Data processed by the Supplier on behalf of the Customer under this DPA.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of Personal Data and the privacy of electronic communications, including, without limitation (i) any data protection or privacy legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Data Subject: Request any request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, right to erasure, right to data portability, right to object to the Processing or its right not to be subject to automated individual decision making.
GDPR: the EU General Data Protection Regulation 2016/679.
Personal Data Breach has the meaning given to it in clause 6.1 of this DPA.
Purpose has the meaning given to it in the Background section of this DPA.
1.2 Clause, Schedule and Annex headings shall not affect the interpretation of this DPA.
1.3 The Schedules and Annexes form part of this DPA and shall have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Schedules and Annexes.
1.4 Unless otherwise expressly stated, a reference to writing or written includes email but not fax.
1.5 Unless otherwise expressly stated, references to clauses, Schedules and Annexes are to the clauses, Schedules and Annexes of this DPA.
1.6 Any words following the terms including, include, in particular, for example or any other similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms.
2.1 This DPA shall commence on the Commencement Date and shall continue in force, unless otherwise terminated in accordance with clause 2.2 until the date the Purpose is completed.
2.2 The Customer may terminate this DPA immediately at any time by giving written notice to the Supplier.
2.3 Termination of this DPA shall be without prejudice to the accrued rights and liabilities of the parties and to those provisions of this DPA which are expressly or by implication intended to survive termination.
3.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This DPA is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
3.2. The parties acknowledge and agree that the Supplier is the Processor and the Customer is the Controller of Customer Personal Data Processed under this DPA.
3.3. Annex 1 to this DPA sets out the scope, nature and purpose of the Processing by the Supplier, the duration of the Processing and the types of Personal Data being Processed.
3.4. The Supplier shall process the Customer Personal Data:
3.4.1. only on written instruction from the Customer;
3.4.2. strictly as required for the Purpose and
3.4.3. in accordance with the terms of this DPA.
3.5. The Supplier shall keep the Customer Personal Data confidential and shall ensure that all personnel who have access to and/or Process Customer Personal Data have received appropriate data protection training and are obliged to keep the Personal Data confidential.
3.6. The Supplier shall assist the Customer in ensuring the Customer’s compliance with its obligations under the Data Protection Legislation with respect to security, Personal Data Breach notifications, impact assessments and consultations with Supervisory Authorities or regulators.
4.1. The Supplier shall notify the Customer without undue delay, and in any event within 48 hours, if the Supplier receives any Data Subject Request or any other complaint, notice or communication from a Data Subject which relates directly or indirectly to the Processing of Customer Personal Data or to either party’s compliance with the Data Protection Legislation.
4.2. Notices under clause 4.1 shall be sent in accordance with the Notices section in the Terms and Conditions.
4.3. The Supplier shall provide Customer with reasonable co-operation and assistance in relation to any such Data Subject Request, complaint, notice or communication including assisting Customer in responding to the Data Subject Request and complying with Customer’s obligations under the Data Protection Legislation.
5.1. The Supplier shall implement technical and organisational measures to ensure a level of protection for the Customer Personal Data which is appropriate to the data security risks involved in the Processing of the Customer Personal Data. Such measures shall include measures to protect the Customer Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction or damage.
5.2. The security measures shall include:
5.2.1. pseudonymisation, anonymisation and encryption of Customer Personal Data;
5.2.2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
5.2.3. the ability to restore the availability and access to Customer Personal Data in a timely manner in the event of a physical or technical incident; and 5.2.4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing of the Customer Personal Data.
6.1. The Supplier shall notify the Customer without undue delay, and in any event within 48 hours, if the Supplier becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Customer Personal Data (Personal Data Breach) or receives any complaint, notice or communication from a Supervisory Authority or other regulator, which relates directly or indirectly to the Processing of Customer Personal Data.
6.2. All notices under clause 6.1 shall be sent in accordance with the Notice provision within the Terms and Conditions and shall set out:
6.2.1. the nature of the Personal Data Breach;
6.2.2. the number of records affected or potentially affected; and
6.2.3. the steps proposed by the Supplier to remedy the Personal Data Breach.
6.3. If the Supplier is unable to provide all the information referred to in clause 6.2 within the timeframe specified by clause 6.1 then it must nevertheless notify the Customer of the Personal Data Breach within such time frame.
6.4. The Supplier shall provide the Customer with reasonable co-operation and assistance in relation to any Personal Data Breach or other complaint, notice or communication which relates directly or indirectly to the Processing of Customer Personal Data.
7.1. The Supplier shall not use any third party Processor (Sub-Processor) of the Customer Personal Data without the prior written consent of the Customer. The Customer acknowledges that it has pre-approved the Sub-Processors, listed in Annex 2 to this DPA.
7.2. Where the Customer consents to the use of a Sub-Processor, the Supplier shall enter into a written agreement with such Sub-Processor containing data protections terms which are substantially similar to, and in any event no less onerous than, the terms of this DPA.
7.3. If at any time the Customer notifies the Supplier that it has withdrawn its consent for the use of a Sub-Processor then the Supplier shall immediately cease to use such Sub-Processor for any Processing activity under this DPA.
7.4. The Supplier shall remain fully liable to the Customer for all acts and omissions of any Sub-Processor appointed by the Supplier under this DPA.
8.1. The Supplier shall not transfer or Process any Customer Personal Data outside the European Economic Area without the prior written consent of the Customer. Should the Customer request the Services in a territory which requires transfer of Customer Personal Data outside the European Economic Area, the parties shall ensure that transfer is subject to the Standard Contractual Clauses.
9.1. The Supplier shall, at any time, including on or after termination of this DPA, at the written direction of the Customer, delete or return the Customer Personal Data and copies thereof to the Customer unless the Supplier is strictly required by applicable law to store a copy of the Customer Personal Data.
9.2. If Supplier is required by applicable law to store any Customer Personal Data then the Supplier shall notify the Customer in writing of such requirement. Any Customer Personal Data retained by the Customer must be limited to that strictly required by applicable law and kept confidential and secure. The obligations under this DPA will continue to apply to any Customer Personal Data retained by the Supplier after termination.
10.1. The Supplier shall maintain and make available to the Customer all information necessary to evidence the Supplier’s compliance with this DPA, or the Supplier or the Customer’s compliance with Data Protection Legislation.
10.2. The Supplier shall, on reasonable notice, permit the Customer or an auditor appointed by the Customer access to its premises to conduct an audit of the Supplier’s systems, books, records and personnel used or created in the performance of the Supplier’s obligations under this DPA. The Supplier acknowledges that in the case of an actual or suspected Personal Data Breach or where Customer is acting on the instructions of a Supervisory Authority or regulator it may be reasonable for the Customer to request immediate access to the Supplier’s premises.
10.3. The Supplier shall provide reasonable assistance to the Customer or its auditor in carrying out the audit and shall permit the copying of such records and other materials as the Customer reasonably requires.
10.4. The auditor’s cost shall be paid for by the Customer unless the audit reveals a breach of this DPA or the Data Protection Legislation by the Supplier in which case the Supplier shall reimburse the Customer for the auditor’s costs. The Supplier shall bear its own costs of complying with its other obligations under this clause 10.
11.1. At all times during the Term of this DPA and thereafter the Supplier shall indemnify the Customer against all direct claims, liabilities, costs, expenses, damages and losses (including but not limited to any regulatory fines or legal costs and other reasonably and necessarily incurred professional costs and expenses) suffered or incurred by the Customer arising directly from the Supplier’s breach or negligent performance of this DPA or the Supplier’s failure to comply with the Data Protection Legislation. This indemnity shall be subject to the cap in clause 8.3.2 of the Agreement.
12.1. Unless otherwise expressly stated in this DPA, each party shall bear its own costs of complying with its obligations under this DPA and the Data Protection Legislation.
12.2. The rights and remedies set out in this DPA are cumulative and are not exclusive of any other rights and remedies provided by law.
12.3. This DPA may not be varied other than in writing signed by an authorised representative of each party.
12.4. This DPA and any disputes (including non-contractual disputes) arising out of or in connection with it shall be governed and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
2. Purpose of ProcessingThe purpose of processing the data is to enable the Customer to review the manner in which its clients arrive at its website, the website activity and consequent phone calls made. Once a phone call is made, the Customer is able to review the duration of the call and set additional fields to review the success of the call.
3. Duration of the ProcessingThe data is processed from point of interaction with Customer's website to the point at which it is uploaded to the Supplier’s Hub. It is then stored on the Supplier Hub, subject to deletion periods which are agreed between the Supplier and the Customer.
4. Types of Personal Data and Data SubjectsSupplier processes IP addresses and phone numbers of Customer’s clients and prospective clients. Supplier also processes email addresses, names and phone numbers of Customer’s employees working with the Supplier. This is done in order to set-up access to the Hub. These details are stored on Supplier’s CRM system.