Please read these Terms and Conditions carefully before registering for a subscription for the Services offered on this website operated by Cleata Limited of 64a Cumberland Street, Edinburgh, EH3 6RE, Scotland, company number SC667700.
In this Agreement, the following words shall have the following meanings:
|“Business Day”||means 9.00 am to 6.00 pm UK local time on a Monday to Friday (excluding any national holiday in the UK);|
|“Company”||means Cleata 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 possession by virtue of its entry into this 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;|
|“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 for use of the Services;|
|“DPA”||means the data processing agreement of the Company published at www.cleata.com/DPA as amended from time to time;|
|“Effective Date”||means the date on which payment for the Services is confirmed via Stripe in the confirmation invoice;|
|“Feedback”||means feedback, innovations or suggestions created by the Customer or users regarding the attributes, performance or features of the Services;|
|“Fees”||means the fees payable for the Services during the Term, calculated as set out in clause 5 of this Agreement;|
|“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, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, 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 initial fixed period set out in the Order Form, starting on the Effective Date;|
|“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;|
|“Order Form”||means the online order form completed by the Customer to enter into a subscription to use the Services;|
|“Renewal Term”||means the renewal period set out in the Order Form;|
|“Services”||means the software applications services of the Company, ordered online by the Customer and set out in the Order Form;|
|“Statistical Data”||means aggregated, anonymised data derived from the Customer or user’s use of the Services which does not include any personal data or Customer Confidential Information;|
|“Term”||means the Initial Term plus any Renewal Terms together until the Agreement is terminated;|
|“Terms and Conditions”||means these terms and conditions of the Company published at www.cleata.com/terms-and-conditions as amended from time to time;|
|“Updates”||means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services.|
The Customer engages the Company and the Company agrees to provide the Services to the Customer from the Effective Date for the Term in accordance with the terms of this Agreement.
3.1 Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term. 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 licences.
3.2 No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this 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 this Agreement, the Services are provided and may be used solely by the Customer only. Except as specifically stated in this Agreement, 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) permit access to or use of the Services by or on behalf of any third party.
3.5 The Company may suspend access to the Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of the Customer or its users. Where possible, the Company shall give the Customer 24 hours written notice, before suspending access to the Services, giving specific details of its reasons.
4. Intellectual Property Rights
4.1 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer Data, Customer or third party owned item) shall remain with the Company and/or its licensors and subcontractors. No interest or ownership in the Services, the Intellectual Property Rights or otherwise is transferred to the Customer under this Agreement.
4.2. The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing Intellectual Property Rights and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company a non-exclusive, licence to use Customer Data, Customer Intellectual Property Rights and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Services.
4.3 The Customer is not allowed to remove any proprietary marks or copyright notices from the Services.
4.4 The Customer grants the Company a non-exclusive, non-transferable, revocable licence to use the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time for the purposes of providing the Services.
4.5 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
4.6 The Customer grants the Company the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer or Customer’s Confidential Information.
4.7 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
5. Ordering, Fees, Invoicing and Payment
5.1 The Company is entitled to refuse any order placed by a Customer. If an order is accepted, the Company will confirm acceptance via email.
5.2 The Company shall invoice the Fees, as set out at on the Order Form.
5.3 All Fees are subject to change, where Fees are to change, the Customer will be notified by Email at least 30 days in advance.
5.4 The Fees are the prices published on www.cleata.com on the date of each invoice, unless otherwise agreed in an Order Form. All Fees exclude any Value Added Tax legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
5.5 All Fees are payable immediately in advance in the currency stated in the Order Form, unless the parties agree otherwise in an Order Form.
5.6 The Customer undertakes that all details provided for the purpose of obtaining the Services will be correct and that any credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
5.7 Where payment of any Fees is not received within 7 days of the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid. The Company shall be entitled to charge interest on overdue Fees at the applicable statutory rate.
5.8 The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
5.9 Where services are provided free of charge, the services and functionality may change over time.
6.1 Each party warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under this 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 this Agreement.
6.2 The Company warrants to the Customer that: (i) it has the right to license the Services; (ii) the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice; (iii) the Services shall operate to materially provide the facilities and functions provided by the Company; and (iv) in performing the Services it will not infringe the Intellectual Property Rights of any third party or be in breach of any obligations it may have to a third party. The foregoing warranties shall not: (a) cover deficiencies or damages relating to 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.
6.3 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.
6.4 The Customer warrants and represents to the Company that: (i) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement; (ii) it 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 this Agreement is limited as set out under this Agreement. In particular the Customer and 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 unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing. The Customer shall be liable for any breach of this Agreement by its users; and (iii) 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 centres 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.
6.5 All third party content or information provided by the Company via the Services, for example prices is provided “as is”. The Company provides no warranties in relation to such content or information and shall have no liability whatsoever to the Customer for its use or reliance upon such content or information.
6.6 Except as expressly stated in this 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.
6.7 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.
7.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
7.2 In no event shall either party be liable to the other for any Consequential Loss whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for the purposes of this clause mean: (i) pure economic loss; (ii) losses incurred by any client of the Customer or other third party; (iii) loss of profits (whether categorised as direct or indirect loss); (iv) losses arising from business interruption; (v) loss of business revenue, goodwill or anticipated savings; and (vi) losses whether or not occurring in the normal course of business, wasted management or staff time.
7.3 Subject to clauses 7.1 and 7.2, the total liability of the Company to the Customer in aggregate (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall be limited to one hundred (100) 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 twelve (12) month period prior to the date on which such claim arose. If the duration of the Agreement has been less than twelve (12) months, such shorter period shall apply.
7.4 The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any users who access the Services as if such acts, omissions or negligence had been committed by the Customer itself.
7.5 In no event shall the Customer raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement.
7.6 The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
8.1 The Company, shall at its own expense: (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 defence and/or settlement; and the (c) Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
8.2 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.
8.3 The Company shall have no obligations under this clause 8 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 terms of this Agreement; or (iii) the negligence or wilful misconduct of the Customer.
8.4 The Customer shall defend, indemnify and hold the Company and its employees, sub-contractors or agents harmless from and against any cost, losses, fines, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or breach by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by users or a third party; and (iii) use by the Company of any Customer Data or Customer or user provided item; and (iv) breaches of data protection law or regulations or the terms of the DPA by the Customer; and (v) any breach of the terms of this Agreement by a user; and the Company shall be entitled to take reasonable measures to prevent the breach from continuing.
8.5 Subject to clauses 8.1 to 8.4 inclusive, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) 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 second party under clause 8 of this Agreement. Such indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
9. Term and Termination
9.1 This 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 a party terminates early in accordance with its rights set out below in this clause 9.
9.2 The Company may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if: (i) the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement; or (ii) the Company is prohibited, under the laws of Scotland or otherwise, from providing the Services.
9.3 Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party: (i) 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; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than twenty eight (28) days.
9.4 Upon termination of this Agreement: (i) the Company shall continue to provide the Services until the Renewal Term. After which, access to the Services to the Customer and all licences granted hereunder shall terminate; (ii) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term; (iii) at the option of the Customer, the Customer can until the date of termination delete or obtain a copy of Customer Data stored in the Company’s database in a machine readable format, free of charge by downloading this from the Services, subject to the provisions of the DPA.
9.5 Termination of this 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 this Agreement and shall remain in force and effect.
10. Confidential Information
10.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
10.2 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 this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
10.3 Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
10.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.
11. Data Protection
11.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
11.2 To the extent that personal data is processed when the Customer or it users, use 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 obligations under applicable data protection law and the terms of the DPA.
11.3 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.
12. Third Parties
Nothing contained in this Agreement 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.
13. Force Majeure
13.1 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, then that party’s obligation to perform in accordance with this Agreement will be suspended.
13.2 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 this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
14.1 Should a provision of this 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.
14.2 This 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.
14.3 No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to: (i) any company in the Company’s group of companies; or (ii) any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event, who is not a competitor of the Customer.
14.4 The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
14.5 Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if: (i) sent by registered post to a party at the address given for that party in this Agreement; or (ii) to the email address of each party usually used to correspond within the Services for invoicing or set out in the Order Form. Notwithstanding the aforesaid, the Company may change or modify the terms of this Agreement upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period.
14.6 This Agreement shall be governed by the laws of Scotland. The courts of Scotland shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.