Version 8.0 - Effective Date 27th September 2017
Please read these Terms of Service, carefully before registering for a subscription for the Services offered via this website, operated by Cloud9 Software Limited of Second Floor, 95 South Road, Waterloo, Liverpool, L22 0LR, England, company number 09829933, VAT number GB 157 3785 74.
These Terms of Service apply to the Services set out in the Sales Order provided to the Customer by the Company.
In these Terms of Service, the following words shall have the following meanings:
"Authorized Users" means employees, agents, consultants or independent contractors of the Customer who have been expressly authorized by the Customer to receive a password in order to access the Services online;
"Company" means Cloud9 Software Limited;
"Confidential Information" means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party's Company's possession by virtue of its entry into the Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
"Consequential Loss" means pure economic loss, losses incurred by any client of the Customer or other third party, loss of profits (whether categorized as direct or indirect loss), losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time and loss or corruption of data;
"Customer Data" means all data imported into the Services for the purpose of using the Services or facilitating the Customer's use of the Services;
"Customer" means the company or person who completes the online registration form or who signs the Sales Order for purchase of the Services;
"DPA" means the data processing agreement entered into between the Company and the Customer published at www.intelligentcontract.com/en-gb/data-processing-agreement;
"Effective Date" means the date set out in the Sales Order;
"Excessive Use" means excessively using the Services at peak times, to the extent that use of the Services by other Customers is impaired. For example: requesting support more than 10 times per week consistently over a 1-2 month period; more than 80% of users constantly use the Services for more than 12 hours per working; storing contracts that have a combined sized in excess of 500GB;
"Fees" means the fees as set out in the Sales Order or any other invoice issued after the Effective Date;
"Force Majeure" means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labor dispute, labor shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
"Initial Term" means the period starting from the Effective Date for the period set out in the Sales Order;
"Intellectual Property Rights" means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
"Renewal Term" means the period set out in the Sales Order;
"Sales Order" means the Sales Order signed by the Company and the Customer or the online subscription form completed by the Customer setting out the chargeable Services ordered by the Customer;
"Services" means the software applications services of the Company, set out in the Sales Order which are made available to the Customer in subject to the rules on Excessive Use and including any computer software programmes and, if appropriate, Updates thereto;
"Sensitive Data" means personal data revealing financial information (including but not limited to credit ratings, credit history, bank account, credit card, debit card details), Date of birth, payment amounts relating to individuals (including but not limited to payroll data, direct payments), racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data processed for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation;
"Term" means the Initial Term plus each Renewal Term together;
"Terms of Service" means these Terms of Service;
"Trial Period" means the free trial period set out in the Sales Order, if any;
"Updates" means any new or updated applications services or tools (including any computer software programmes) made available by the Company from time to time as part of the Services.
2.1 The Customer engages the Company and the Company agrees to provide the Services for the Term in accordance with the terms of the Agreement.
2.2 The Services shall be provided subject to the rules of Excessive Use. Where there is Excessive Use of the Services, the Company will contact the key account user by telephone or email to inform them of the Excessive Use. The Customer shall then be given the option of reducing its usage or to pay an additional premium to continuing using the Services at an agreed higher usage level.
3.1 Subject to the Customer's payment of the Fees, the Customer is granted a non-exclusive and non-transferable license to use and to permit Authorized Users to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term for the Customer's internal business operations. Such license shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services via the Internet. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licenses.
3.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under the Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in the Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in the Agreement, the Services are provided and may be used solely by the Customer as part of the Customer's website/desktop architecture. The Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in the Agreement, permit access to or use of the Services by or on behalf of any third party.
3.5 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.6 The Customer shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under the Agreement is limited as set out in the Agreement.
3.7 The Company may take and maintain technical precautions to protect the Services from improper or unauthorized use, distribution or copying.
3.8 The Customer is expressly prohibited from allowing anyone under the age of 16 to use the Services.
4.1 In consideration of the provision of the Services by the Company, the Customer shall pay the Company the Fees.
4.2 The Company shall render invoices to the Customer in respect of the Fees. All Fees are payable either immediately by credit card on the date of each invoice or by bank transfer credit no more than 30 days after the date on each invoice. The Fee is the price set out in each invoice. All Fees are exclusive of VAT.
4.3 All Fees shall be charged in the currency set out in each invoice and shall be payable in full by the Customer in the currency set out in each invoice together with any Value Added Tax (if applicable).
4.4 The Customer undertakes that all details provided for the purpose of obtaining the Services will be correct and that the credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
4.5 If the Customer fails to pay any Fees the Company reserves the right to immediately: (i) disable the Customer's account; and (ii) suspend the provision of the Services to the Customer until all outstanding invoices have been paid in full. In addition, the Company is entitled to charge interest (both before and after any judgement) on the outstanding amount at the rate of 3% above the base rate of Barclays Bank plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments
4.6 Fees remain fixed for the Initial Term of the Agreement. After the Initial Term, the Company may on each subsequent anniversary of the Effective Date, increase the Fees by no more than 4% above the UK Retail Price Index.
4.7 Changes to the quantity and scope of Services ordered by the Customer can be made by the Customer during the Term by the Customer completing the process for an upgrade or downgrade contained within the Services. The Fees payable for the Services shall be adjusted automatically in the next invoice to the Customer following the change. No refund will be given for any unused Services.
5.1 The Company warrants and represents to the Customer that: (i) it has the right to license the Services; (ii) the Services will operate to provide the facilities and functions implemented by the Company; (iii) use of the Services will not infringe the rights of any third party (including but not limited to Intellectual Property Rights in any jurisdiction); and (iv) the Services shall be provided with reasonable skill and care and performed in a professional manner. The foregoing warranties shall not cover deficiencies or damages relating to: (a) any third party components not furnished by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services. In the event of a breach by the Company of its warranties, the Company shall have no liability or obligations to the Customer other than to reimburse the Fees for the Services. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free.
5.2 The Customer warrants and represents that: (i) it has full corporate power and authority to enter into the Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under the Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to the Agreement; and (iv) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under the Agreement.
5.3 The Customer warrants and represents that it and all users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under the Agreement is limited as set out under the Agreement. In particular the Customer and all users shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorized persons. Any breach of the above shall be immediately notified to the Company in writing. The Customer shall be liable for any breach of the Agreement by any user.
5.4 The Customer warrants and represents that it shall ensure that its network and systems comply with the relevant specification provided by the Company from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer's systems to the Company's data centers and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the Internet.
5.5 The Customer warrants that it will not upload, store or send any Sensitive Data via, or when using, the Services.
5.6 The Customer acknowledges that Services should not be used for high risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
5.7 Except as expressly stated in the Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law.
5.8 This section 5 shall survive the termination of the Agreement.
6.1 The Company does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Company in connection with the provision of the Services.
6.2 In no event shall the Company be liable to the Customer whether arising under the Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss.
6.3 Subject to sections 6.1 and 6.2, the total liability of the Company in aggregate (whether in contract, tort or otherwise) under or in connection with the Agreement or based on any claim for indemnity or contribution shall not exceed 100 (one hundred) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Company during the preceding 12 (twelve) month period or, if the duration of the Agreement has been less than 12 (twelve) months, such shorter period, as applicable.
6.4 The Customer shall be liable for any breaches of the Agreement caused by the acts, omissions or negligence of any Authorized Users who access the Services as if such acts, omissions or negligence had been committed by the Customer itself.
6.5 In no event shall the Customer raise any claim under the Agreement more than 1 (one) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of termination of the Agreement. This section shall survive the termination of the Agreement.
6.6 The Customer acknowledges and agrees that in entering into the Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
7.1 The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defense and/or settlement; and the (c) Customer fully co-operates and provides all reasonable assistance to the Company in the defense or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
7.3 The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with the Agreement; or (iii) the negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer or Authorized User of any Intellectual Property Rights with respect to the Customer's use of the Services; (ii) any access to or use of the Services by an Authorized User, the Customer or a third party; and (iii) use by the Company of any Customer Data or Customer provided item; and (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer or an Authorized User; and (v) any Sensitive Data uploaded by the Customer or an Authorized User into the Services.
7.5 Subject to sections 7.1 to 7.4 inclusive, each party indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the claiming party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the indemnifying party, its officers, servants or agents in any way connected with the Agreement whether arising from any failure by the indemnifying party to comply with the terms of the Agreement or otherwise.
7.6 The indemnity above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the claiming party in defending any such action, proceeding claim or demands.
8.1 The Agreement will begin on the Effective Date and continue for the Initial Term. Upon expiry of the Initial Term the Agreement shall automatically renew for further Renewal Terms unless either party terminates: (i) by giving at least 30 (thirty) days notice prior to the start of a Renewal Term; or (ii) early in accordance with its rights set out below in this section 8.
8.2 The Company may immediately terminate the Agreement or the provision of any Services provided pursuant to the Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with the Agreement.
8.3 Either party shall be entitled to terminate the Agreement at any time by giving written notice if: (i) the Company is prohibited, under the laws of England or otherwise, from providing the Services; or (ii) the other party ceases or threatens to cease to carry on business; or (iii) the other party goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction.
8.4 Either party shall be entitled to terminate the Agreement after giving 14 (fourteen) days written notice if: (i) the other party commits a material breach of any term of the Agreement which, if capable of remedy, is not remedied within 7 (seven) days of receipt of a written notice specifying the breach and requiring it to be remedied; (ii) the other party is prevented by Force Majeure from fulfilling its obligations under the Agreement for more than 28 (twenty eight) days.
8.5 Upon termination of the Agreement: (i) the Company shall immediately cease providing the Services to the Customer; (ii) all licenses granted hereunder shall terminate; (iii) the Company shall return Customer Data stored in the Company's database within a reasonable time, and in a format and on a media reasonably determined by the Company subject to the Customer paying the Company's reasonable administrative costs incurred in returning Customer Data, which shall not to exceed £200 (GBP) and only where a Customer specifically makes this request in their notice of termination; and (iv) the Customer shall promptly pay the Company any unpaid Fees for the remainder of the Term. No Fees paid in advance for any period after termination, or already paid, shall be refunded, unless termination is solely due to the Company's breach of the Agreement.
8.6 Termination of the Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of the Agreement and shall remain in force and effect.
9.1 Each party may use the Confidential Information of the other party only for the purposes of the Agreement and must keep confidential all Confidential Information of the other party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
9.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of the Agreement provided that such employee or agent is bound by confidentiality undertakings equivalent to those set out in the Agreement.
9.3 Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion or termination of the Services.
9.4 The obligations of confidentiality under the Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to the Agreement; (ii) is, or after the Effective Date of the the Agreement, becomes public knowledge (otherwise than as a result of a breach of the Agreement); or (iii) is required by law to be disclosed.
10.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2 To the extent that personal data is processed using the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. The Company agrees that it will only process personal data on behalf of, and in the name of, the Customer.
10.3 To the extent that personal data is processed using the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the DPA.
10.4 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party's rights from continuing.
10.6 Customers are responsible for keeping copies of Customer Data used and stored on the Company's servers. Customers are responsible for removing all Customer Data from the Services prior to the termination or expiry of the Agreement. Notwithstanding the aforesaid, the Company reserves the right to remove all Customer Data six (6) months after the expiry or termination of the Agreement without giving the Customer any prior notice of such deletion.
Nothing contained in the Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
12.1 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under the Agreement, then that party's obligation to perform in accordance with the Agreement will be suspended.
12.2 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
13.1 Should a provision of the Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
13.2 The Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
13.3 No failure or delay of either party to exercise any rights or remedies under the Agreement shall operate as a waiver of that failure or delay, nor shall any single or partial exercise of the same or other rights or remedies prevent any further or other exercise of the same or other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be constructed as a waiver of those rights or remedies with respect to any other circumstances.
13.4 No party may assign its rights under the Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however: (i) the Company shall be entitled to assign the Agreement to any company in the Company's group of companies; or (ii) to any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event, unless such acquiring entity is a competitor of the non-assigning party.
13.5 The Company and the Customer are independent contractors and nothing in the Agreement will be construed as creating an employer-employee relationship.
13.6 Any reference in the Agreement to "writing" shall include email. However, any notices of proceedings or relating to a dispute must be sent by registered post to the registered office or principal place of business of the recipient. All other notices may be sent by email to the email address provided by each party on the Customer's registration for the Services.
13.7 The Company may at its reasonable discretion, change the terms of the Agreement upon giving the Customer 30 (thirty) days' notice by email or notification on its website. If the Customer does not agree to the changes, the Customer must notify the Company in writing prior to the expiry of the 30 (thirty) day period and the Agreement shall be automatically terminated with effect from the date of the proposed change to the Agreement. If no such notice is received from the Customer or the Customer continues to use the Services after the expiry of the 30 (thirty) days, the Customer shall be deemed to have accepted the changes made by the Company.
13.8 Both parties agree to attempt in good faith to resolve any dispute or claim arising out of or in connection with the Agreement promptly through negotiations between their senior executives and management. If the matter is not resolved through negotiations then, prior to the commencement of legal proceedings, both parties will attempt in good faith to resolve the dispute or claim by participating in an Alternative Dispute Resolution Procedure ("ADR"). If the matter has not been resolved by an ADR procedure within 45 days of such procedure being commenced, then the matter may be dealt with through legal proceedings.
13.9 The Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under the Agreement.
Cloud9 Software Limited
Registered Office: 95 South Road, Waterloo, Liverpool, Merseyside, United Kingdom, L22 0LR
Company Number: 05189084
Tel: +44 (0)333 344 3905 Fax: +44 (0) 870 912 5568
VAT number: 157 3785 74
© Cloud9 Software Limited, 2016