The LinchpinOps Customer Agreement (this "Agreement") is entered into between Bayshore Cloud Technology Limited ("LinchpinOps", "we", "us", or "our") and you or the entity you represent ("Customer", "you" or "your") upon your account registration on LinchpinOps portal, when you click an "I Accept" button or check box presented with the terms and conditions.
If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. By indicating your acceptance of this agreement or accessing or using any LinchpinOps Services, you agree to all the terms and conditions outlined in this agreement. If you do not agree to these terms, you cannot use any LinchpinOps Services.
You acknowledge that this Agreement is enforceable just like any written agreement you have signed.
This Agreement, together with the Customer Order (including associated SLAs, constitutes the entire agreement between LinchpinOps and the Customer ("Complete Customer Agreement"). In the event of any conflict between this Agreement and the Customer Order, the terms of the Customer Order shall prevail.
LinchpinOps offers services by categorized modules through its portal. Each service module consists of various integral components, associated with specific SLAs as detailed in the Customer Order. Customers may subscribe to standard or customized service plans within each category, as available on the LinchpinOps portal.
The Customer Order is uniquely identified, and is recorded in the LinchpinOps portal to incorporate into this Agreement. Key elements of the Customer Order include:
Customers can access the full details of their Customer Orders, including specific services, plans, and SLAs, through their account on the LinchpinOps portal. Any modifications to the Customer Order must be made through the LinchpinOps portal and will be reflected in the customer's account. Such modifications may affect the terms of this Agreement, including pricing and service levels.
By using the LinchpinOps Services, Customer acknowledges and agrees to fulfill these responsibilities. Failure to meet these responsibilities may result in suspension or termination of the Services as outlined in Section 6 (Term and Termination) of this Agreement.
Customer agrees to comply with the LinchpinOps Acceptable Use Policy (AUP), which is incorporated into this Agreement by reference and may be updated from time to time. Customer will ensure that all use of the LinchpinOps Service by Customer and its Users is consistent with this Agreement and the AUP.
Customer agrees to pay all fees due for the LinchpinOps Services in advance of the Term, as specified in the Customer Order and in accordance with Section 5 (Fees and Payment) of this Agreement. Customer is responsible for providing complete and accurate billing and contact information to LinchpinOps and notifying LinchpinOps of any changes to such information.
Customer is responsible for maintaining the confidentiality of account credentials and for all activities that occur under Customer's account. Customer agrees to notify LinchpinOps immediately of any unauthorized use of Customer's account or any other breach of security. LinchpinOps cannot and will not be liable for any loss or damage arising from Customer's failure to comply with this section.
Customer will grant access to LinchpinOps as necessary to perform services on Customer's systems, including permissions, licenses, network authorization to access and use any Customer-provided systems, software, or data required. Customer will ensure information provided is accurate, complete, and up-to-date.
Customer agrees to provide reasonable cooperation and assistance to LinchpinOps in connection with the delivery of services, including designating authorized users, and naming appropriate focal points with capability and capacity in responding to LinchpinOps’ requests for information, access or assistance in time.
Customer will comply with any limitations or requirements specified in the Customer Order or Service documentation, including but not limited to VMs, App pipelines, API call volumes.
Customer agrees to pay all fees specified in the Customer Order. Fees are quoted and payable in the currency specified in the Customer Order. Payment obligations are non-cancellable, and fees paid are non-refundable. Service Plans purchased cannot be degraded during the relevant Subscription Term.
Customer must maintain an active subscription through the LinchpinOps portal to access and use the Services. Payment for the Customer Order must be made in advance of the Subscription Term. Customer may set up automatic payment by LinchpinOps accepted payment methods in the account.
LinchpinOps will notify Customer 7 days prior to the expiration of current Customer Order. To maintain uninterrupted service, Customer must renew their subscription and complete payment before the expiration of the current term. Renewal can be completed through manual payment or automatic payment if set up in the Customer's account. If payment is not received by the expiration date, LinchpinOps will cease to provide services under the expired Customer Order.
To reactivate Services after expiration, Customer must submit a new Customer Order and complete payment through the LinchpinOps portal.
LinchpinOps' fees do not include tax. Customer is responsible for paying all taxes associated with its purchases hereunder. If LinchpinOps has the legal obligation to pay or collect taxes for which Customer is responsible under this section, LinchpinOps will invoice Customer and Customer agrees to pay that amount, together with or separately from the payment of Customer Order.
LinchpinOps may offer coupons for customers to test services. These coupons have no cash value and are subject to the specific terms provided with each coupon. Coupons may only be used for the services and duration specified and cannot be transferred, exchanged for cash, or combined with other offers unless explicitly stated otherwise. LinchpinOps reserves the right to modify or cancel coupons at any time, though this will not affect coupons already applied to Customer's account. Any services accessed through the use of coupons are subject to all terms and conditions of this Agreement.
Service Credits are non-transferable points that may be earned by Customer's account after a specified period of active service or as compensation for service issues. Credits have no cash value and can only be applied towards future LinchpinOps Services as specified in the Customer Order or service documentation. The earning, application, and expiration of Service Credits are governed by the terms specified in the Customer Order or as published in LinchpinOps' service documentation.
LinchpinOps reserves the right to modify the Service Credit program, including earning rates and redemption values, with 30 days notice to Customers. Any such changes will not affect credits already earned. Upon termination of the Agreement, all unused Service Credits will be forfeited.
LinchpinOps reserves the right to change its fees and payment terms at any time, with such changes taking effect at the start of the next subscription term. LinchpinOps will provide notice of any fee change through the customer portal or via email to Customer's registered email address.
If Customer believes that LinchpinOps has billed Customer incorrectly, Customer must contact LinchpinOps no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to LinchpinOps' customer support.
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
The term of each subscription shall be as specified in the applicable Customer Order. Except as otherwise specified in a Customer Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Either party may terminate this Agreement for convenience by providing 30 days' written notice to the other party. For Customers, this can be accomplished by closing their account through the LinchpinOps portal.
A party may terminate this Agreement for cause upon 14 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
Upon termination of this Agreement for any reason:
LinchpinOps will not provide any refund for prepaid fees or unused services upon termination.
After 30 days from the effective date of termination or expiration of this Agreement, LinchpinOps will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
The following sections will survive any expiration or termination of this Agreement: “Fees and Payment”, “Term and Termination”, “Third-Party Products and Services”, “Security”, “Data Privacy and Confidentiality”, “Intellectual Property Rights”, “Limitation of Liability”, “Indemnification”, “Definitions”.
In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, LinchpinOps reserves the right to suspend provision of LinchpinOps Services:
LinchpinOps may resell, install, or serve as a maintenance party for third-party products or services. Any such involvement with third-party products or services will be explicitly stated in the Customer Order. For any third-party products or services included in the Customer Order, Customer grants LinchpinOps the necessary access and authorization to perform the specified operational and management services. Customer warrants that it has all necessary rights to grant such access and authorization to LinchpinOps.
Unless explicitly stated otherwise in the Customer Order, Customer is solely responsible for obtaining and maintaining all necessary licenses, consents, and permissions for any third-party software used in conjunction with LinchpinOps Services. Where LinchpinOps resells third-party software licenses as part of the Customer Order, Customer remains ultimately responsible for compliance with the third-party licensor's terms and conditions.
Where explicitly stated in the Customer Order, LinchpinOps may provide or arrange for hardware maintenance services. Customer remains ultimately responsible for the terms and conditions of hardware maintenance contracts, even when such services are incorporated in the Customer Order.
LinchpinOps' responsibility for third-party products and services is limited to the scope specified in the Customer Order. LinchpinOps is not liable for any defects, failures, or issues inherent to third-party products or services, except to the extent of its explicit obligations as stated in the Customer Order.
Customer agrees to indemnify and hold LinchpinOps harmless from any claims, damages, or liabilities arising from: i) Customer's failure to obtain or maintain necessary third-party rights, licenses, or authorizations. ii) Customer's breach of any third-party license terms or conditions. This indemnification applies regardless of whether the third-party products or services were procured through LinchpinOps or independently by the Customer.
We implement and maintain physical, technical, and administrative security measures designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. These measures include:
We will promptly notify you of any security breach that results in the unauthorized disclosure of your Customer Data in accordance with applicable law.
We will comply with all laws applicable to us as the provider of the LinchpinOps Services. You must comply with all laws applicable to your Customer Data and use of the LinchpinOps Services.
You retain all right, title, and interest in and to your Customer Data. We will only use Customer Data to operate and improve the LinchpinOps Services and as permitted by this Agreement.
We will comply with all applicable privacy and data protection laws.
Each party agrees to keep confidential and not disclose or use any Confidential Information of the other party except as necessary to perform its obligations or exercise its rights under this Agreement.
If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure.
We will retain Customer Data in accordance with our data retention policies and applicable law. Upon termination of this Agreement, we will delete Customer Data in accordance with Section 6.5 (Customer Data Deletion).
We may create aggregated and/or anonymized data derived from Customer Data for our internal use, provided that such data is not personally identifiable and does not include Customer's Confidential Information.
Customer agrees that LinchpinOps retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the LinchpinOps Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any LinchpinOps Technology is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service, except (if applicable) for the Client Software in object code format. LinchpinOps may freely use and incorporate any suggestions, comments or other feedback about the LinchpinOps Services voluntarily provided by Customer or Users into the LinchpinOps Technology.
Notwithstanding anything to the contrary in this Agreement, LinchpinOps may collect and use Customer Data to develop, improve, support, and operate its services. LinchpinOps will not share any Customer Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 9 (Data Privacy and Confidentiality) of this Agreement, or (b) to the extent the Customer Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified.
LinchpinOps may identify Customer as its customer to other LinchpinOps customers or prospective customers, including for purposes of facilitating Customer-controlled data sharing hereunder. Without limiting the foregoing, LinchpinOps may use and display Customer’s name, logo, trademarks, and service marks on LinchpinOps website and in LinchpinOps marketing materials in connection with identifying Customer as a customer of LinchpinOps. Upon Customer’s written request, LinchpinOps will promptly remove any such marks from LinchpinOps website and, to the extent commercially feasible, LinchpinOps’s marketing materials.
To the extent permitted by law, neither party nor its affiliates will be liable to the other party or its affiliates for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue, profits, data, or data use, arising out of or related to this agreement, even if the party has been advised of the possibility of such damages.
To the extent permitted by law, the aggregate liability of each party and its affiliates arising out of or related to this agreement will not exceed the total amounts paid and/or payable to LinchpinOps by Customer for the services that gave rise to the liability during the 12 months immediately preceding the event giving rise to such liability.
The limitations in Sections 11.1 and 11.2 will not apply to:
LinchpinOps will defend Customer against any third-party claim alleging that the LinchpinOps Services, when used as authorized under this Agreement, infringe a third party's intellectual property rights, and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement.
Customer will defend LinchpinOps against any third-party claim arising from or relating to:
and will indemnify LinchpinOps for the resulting costs and damages finally awarded against LinchpinOps to such third party by a court of competent jurisdiction or agreed to in settlement.
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, such consent not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense.
The indemnities in this Section 12 are the only remedies for indemnifiable third-party claims.
If LinchpinOps believes the LinchpinOps Services may infringe or misappropriate a third party's intellectual property rights, LinchpinOps may choose to either modify the LinchpinOps Services to be non-infringing (while substantially preserving their utility and functionality) or obtain a license to allow for continued use. If these alternatives are not commercially reasonable, LinchpinOps may terminate Customer's subscriptions for the affected LinchpinOps Services and refund any prepaid fees covering the remainder of the subscription term for the affected LinchpinOps Services.
Either party may assign this Agreement in its entirety (including all Customer Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer may not otherwise assign its rights or delegate its duties under this Agreement, in whole or in part, without the prior written consent of LinchpinOps, and any attempted assignment or delegation shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region ("Hong Kong"), without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party's reasonable control and occurring without that party's fault or negligence, including, but not limited to, systemic electrical, public telecommunications, or other utility failures, flood, fire, earthquake, storms or other elements of nature, embargoes, riots, public health, civil unrest, strikes or other labor problems, acts or orders of government, acts of terrorism, or war.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim ("Legal Notices"), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant account administrator designated by Customer.
LinchpinOps may provide any and all notices, statements, and other communications to Customer through either email or through Customer's account on the LinchpinOps portal. Customer shall maintain accurate contact information in its account settings on the LinchpinOps portal at all times.
Notices to LinchpinOps shall be sent to: support@linchpin.cafe.
From time to time, LinchpinOps may modify this Agreement. Unless otherwise specified by LinchpinOps, changes become effective for Customer upon renewal of the then-current subscription term or upon the effective date of a new order after the updated version of this Agreement goes into effect. LinchpinOps will notify Customer of the changes through communications via Customer’s account or by email. Customer may be required to click to accept, or otherwise agree to the modified Agreement before renewing a subscription term or upon the effective date of a new order, and in any event continued use of any LinchpinOps Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.