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Kluster Intelligence Terms of Service


Last Reviewed: 10/08/2016


Policy

(A)

Welcome to Kluster Intelligence. These Terms of Service set out the terms on which Kluster Enterprises Limited (referred to in these terms as “KEL”) provides access to the Kluster Intelligence service. Please read these terms of service carefully before registering for use of the Kluster Intelligence service as they form a legally binding contract between the corporate entity specified as the Customer on a Registration Form, and KEL. These terms, together with KEL’s Privacy Policy available on KEL’s website, apply to Customer’s use of Kluster Intelligence.

(B)

If Customer does not accept these terms, then the Customer shall not register for use, or use, the Kluster Intelligence service. Customer agrees to provide KEL with complete and accurate information when Customer register for the Services, and to keep such information up to date.

(C)

The Customer’s attention is drawn in particular to clause 3.10 (which gives KEL rights to derive, use and disclose anonymised data based on your data), 7.2 (which sets out some items for which KEL does not provide any guarantee) and clauses 12.2 and 12.4 (which impose important limitations on KEL’s liability to the Customer).

1

PERMITTED USAGE

1.1

Subject to the Customer paying for the Permitted Usage in accordance with clause 2 and clause 9.1, the restrictions set out in this Agreement, KEL hereby grants to the Customer a non-exclusive, non-transferable right to use the Services strictly in accordance with the Permitted Usage during the Subscription Term solely for the Customer's internal business operations.

1.2

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)contains any payment card or other payment account information of any person or entity;

(c) facilitates illegal activity;

(d) infringes any third party rights including intellectual property rights;

(e) is defamatory of any person;

(f) in a manner that is otherwise illegal or causes damage or injury to any person or property,

and KEL reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause. KEL shall fully co-operate with any law enforcement authorities or court order requesting or directing KEL to disclose the identity or locate anyone posting any material in breach of clause 1.2 and 1.3.

1.3

The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or Product Description (as applicable) in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or

(b) access all or any part of the Services and Product Description in order to build a product or service which competes with the Services and/or the Product Description; or

(c) use the Services and/or Product Description to provide services to third parties; or

(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Product Description available to any third party, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Product Description; and

1.4

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Product Description and, in the event of any such unauthorised access or use, promptly notify KEL.

1.5

The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer. Only one subscription to the Services may be activated by any company, person or other entity. Duplicate subscriptions for any company, person or entity shall be considered a material breach of this Agreement, not capable of remedy, for the purposes of clause 13.2(b) below.

1.6

The Customer undertakes to ensure that all Users comply with this Agreement and acknowledge that Customer shall remain responsible and liable for the acts or omissions of all Users to the same extent as if Customer had carried out such acts or omissions itself.

1.7

Responsibility for the security of any usernames and passwords issued (including those of any Users) rests with Customer. If Customer has reason to believe that its credentials or User account details in respect of the Services have been obtained by another without consent, the Customer should contact KEL immediately to suspend the account.

1.8

Customer will provide KEL contact information for Customer's system administrator, who is authorised to provide the information required to configure and manage the Services by means of contacting KEL ("Customer Representative"). KEL reserves the right to only accept instructions for configuration of the Services (including the creation of User accounts) by the Customer Representative.

2

INCREASING OR DECREASING PERMITTED USAGE

2.1

Subject to clause 2.2, the Customer may, from time to time during any Subscription Term, purchase additional Permitted Usage in excess of that initially purchased and KEL shall grant access to the Services for such additional Permitted Usage in accordance with the provisions of this Agreement.

2.2

If the Customer wishes to purchase additional Permitted Usage, the Customer shall contact their assigned KEL representative requesting a quote for such additional Permitted Usage. In the event that the Customer pays to KEL the price agreed for the additional Permitted Usage, the revised Permitted Usage and Subscription Fees shall apply from the date of such payment.

3

SERVICES

3.1

KEL shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.

3.2

KEL shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out; and

(b) unscheduled maintenance,

provided that KEL has used reasonable endeavours to give the Customer notice in advance.

3.3

KEL will, as part of the Services and at no additional cost to the Customer, provide the Customer with KEL's standard customer support services during Normal Business Hours in accordance with KEL's Support Services Policy in effect at the time that the Services are provided. KEL may amend the Support Services Policy in its sole and absolute discretion from time to time.

3.4

KEL may suspend Customer’s account or any User account or temporarily disable access to whole or part of the Services in the event of any of the following:

(a) any suspected illegal activity,

(b) any actual or suspected breach of this Agreement;

(c) requests by law enforcement or other government agencies.

3.5

The Customer may terminate any User account by contacting KEL with a request for such termination, which KEL shall effect within 2 Business Days.

3.6

Customer acknowledges that KEL does not provide an archiving service, and that KEL does not warrant that any level of back-up will be available in respect of the Customer Data. The Customer is responsible for backing up the Service Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for KEL to use reasonable commercial endeavours to restore the lost or damaged Customer Data.

3.7

KEL shall not have any responsibility in respect of any loss, destruction, alteration or disclosure of Customer Data caused by any third party

3.8

The Customer shall own all right, title and interest in and to all of the Service Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

3.9

The Customer hereby grants to KEL a royalty-free, non-exclusive, irrevocable, right to gather and process and store Service Data solely for the purposes of:

(a) providing the Services, and

(b) copying and processing the Service Data to derive Anonymised Data and to combine that Anonymised Data with other data and information available, derived or obtained from the Account Data and data from third parties including other customers, to permit KEL to develop and improve the Service, and to create and distribute reports, datasets and other materials including or combined with the Anonymised Data,

and warrants and undertakes that Customer has all necessary rights and permissions to the Service Data to authorise KEL to do so.

3.1

The Customer acknowledges and agrees that KEL will be the owner of all right, title and interest in and to Anonymised Data and the Account Data. For the avoidance of doubt, Customer’s grant of licence under clause 3.10 above shall survive the expiry or termination of this Agreement

3.11

The Customer acknowledges that KEL will process in accordance with its accompanied privacy policy any personal data derived from the Customer’s registration or enquiry in respect of the Services. This may include using the Customer’s email address for the purposes of bringing to the Customer’s attention any aspects of the Services, or any other services, which KEL considers may be of interest to the Customer.

4

TRIAL ACCOUNTS

4.1

Subject to the terms of this Agreement, the Services may be utilised on a Trial Basis for a maximum of two weeks. Without prejudice to clause 1.5 above, only one Trial Basis subscription is permitted in respect of any company, person or entity.

4.2

In the event that the Services are provided on a Trial Basis for two weeks, Customer shall be required to pay Subscription Fees as a condition of further use of the Service.

5

THIRD PARTY PROVIDERS

The Customer acknowledges that the Services may enable or assist it to access or use third party services (including Salesforce.com), and that it does so solely at its own risk. KEL makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party service, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not KEL. KEL recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. KEL does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

6

KEL'S OBLIGATIONS

6.1

KEL will not use the Service Data for any purpose other than as permitted under the licence in clause 3.10 above. The Customer shall own all rights, title and interest in and to all of the Service Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2

KEL shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available in accompanied Privacy Policy Document or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by KEL in its sole discretion.

6.3

If KEL processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that for the purposes of the Data Protection Act 1998, the Customer shall be the data controller and KEL shall be a data processor and in any such case:

(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to KEL so that KEL may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;

(b) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(c) KEL shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

(d) KEL shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6.4

KEL will shall follow its Service Continuity Policy, available upon request. Such document may be amended by KEL in its sole discretion from time to time.

7

KEL’S OBLIGATIONS

7.1

KEL undertakes that the Services will be performed substantially in accordance with the Product Description, and that it has used all reasonable endeavours to ensure that the Services are free from Viruses.

7.2

The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to KEL's instructions, or modification or alteration of the Services by any party other than KEL or KEL's duly authorised contractors or agents. If the Services do not conform to the undertaking in clause7.1, KEL will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, KEL:

(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Product Description and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Product Description may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3

Customer acknowledges that the Services have not been developed to meet Customer’s individual requirements, and that it is therefore Customer’s responsibility to ensure that the facilities and functions of the Services meet Customer’s requirements.

7.4

Customer further acknowledges that it is not possible to test the Services in advance in every possible operating combination and environment and it is not possible to produce and provide the Services such that they are known to be error free in all circumstances.

7.5

KEL makes no warranty or representation that the Services will be of satisfactory quality, that they will be fit for a particular purpose, that they will not infringe the rights of third parties, that they will be compatible with all systems, or that they will be secure or free of Viruses (despite KEL’s efforts to deploy industry standard security measures).

7.6

KEL works hard to ensure the accuracy and reliability of its analytics tools and their operation in accordance with the Product Description, but the Customer acknowledges that the processes and analysis provided by means of the Services is accurate, complete, reliable, secure, or useful, or will enhance the Customer’s revenues or sales conversions.

7.7

The Customer acknowledges that no data transmission over the Internet can be guaranteed to be secure. KEL is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside KEL’s control. Customer is responsible for maintaining the security of its networks, servers, applications and data transmissions.

7.8

Nothing in this Agreement shall prevent KEL from entering into similar agreements with third parties, or from independently developing, using, selling or licensing Product Description, products and/or services which are similar to those provided under this Agreement.

8

CUSTOMER'S OBLIGATIONS

The Customer shall:

(a) provide KEL with:

(i) all necessary co-operation in relation to this Agreement; and

(ii) all necessary access to such information as may be required by KEL;

in order to provide the Services;

(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, KEL may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Services and the Product Description are used in accordance with the terms and conditions of this Agreement and shall be responsible for any User's breach of this Agreement;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for KEL, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by KEL from time to time; and

(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to KEL'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.

9

CHARGES AND PAYMENT

9.1

As a condition of its use of and access to the Services (except on a Trial Basis strictly as set out in clause 4), the Customer shall pay the Subscription Fees to KEL for the Permitted Usage in accordance with this clause 9 and the Registration Form.

9.2

The Customer shall on the Effective Date provide to KEL valid, up-to-date and complete payment means acceptable to KEL. The Customer hereby authorises KEL to pay the Subscription Fees:

(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii) subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.

9.3

All amounts and fees stated or referred to in this Agreement:

(a) shall be payable in the currency specified on the Registration Form;

(b) are, subject to clause 12.4(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax or sales tax (as applicable), which shall be added to KEL's invoice(s) at the appropriate rate.

9.4

KEL shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior notice to the Customer and the Subscription Fees shall be deemed to have been amended accordingly.

9.5

The Subscription Fees are billed annually in advance. Payments are non-refundable, and no refunds or credits will be given for any partial use within any subscription period. No refunds or credits will be provided in the event that the Customer does not utilise all its allocation of Permitted Usage, or cancels any User accounts.

9.6

KEL reserves the right to suspend Customer’s access to the Services immediately if Customer fails to pay KEL the full amount of any outstanding fees and charges. If no payment is made to clear the full amount of any outstanding fees and charges within 7 days of their becoming due, Customer’s account and all associated data will be deleted and KEL will be entitled to suspend Customer’s access to the Services for up to 45 days, and/or terminate this Agreement without liability.

10

PROPRIETARY RIGHTS IN THE SERVICES

10.1

The Customer acknowledges and agrees that KEL and/or its licensors own all intellectual property rights in the Services and the Product Description. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Product Description.

10.2

Without limitation on clause 10.1 above, the trade mark “Kluster Intelligence”, the Kluster Intelligence logo and all other trade marks, logos and service marks (the trade marks) which appear on Services are KEL’s trade marks or are licensed for use by KEL by the owners of those trade marks.

10.3

Other trade marks (including “Salesforce.com”) are proprietary marks and are registered to their respective owners.

10.4

Nothing contained in the Services should be construed as granting any licence or right to use any trade marks displayed on the Services without KEL’s written permission or such other trade mark owner.

11

INDEMNITY

11.1

The Customer shall defend, indemnify and hold harmless KEL against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Product Description, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) KEL provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

(c) the Customer is given sole authority to defend or settle the claim.

11.2

KEL shall defend the Customer, its officers, directors and employees against any claim that the Services or Product Description infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) KEL is given prompt notice and full details of any such claim;

(b) the Customer provides all co-operation requested by KEL in the defence and settlement of such claim, at KEL's expense;

(c) KEL is given sole authority to defend or settle the claim; and

(d) KEL shall have no obligation under this clause in respect of any alleged infringement specified in clause 11.4 below.

11.3

In the defence or settlement of any claim, KEL may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such courses of action are not reasonably practicable at what it considers in its absolute discretion to be a reasonable cost, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4

In no event shall KEL, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement is based on:

(a) a modification of the Services or Product Description by anyone other than KEL; or

(b) the Customer's use of the Services or Product Description in a manner contrary to the instructions given to the Customer by KEL; or

(c) the Customer's use of the Services or Product Description after notice of the alleged or actual infringement from KEL or any appropriate authority.

11.5

Clause 11.2 and clause 12.4(b) state the Customer's sole and exclusive rights and remedies, and KEL's (including KEL's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12

LIMITATION OF LIABILITY

12.1

This clause 12 sets out the entire financial liability of KEL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with this Agreement;

(b) in respect of any use made by the Customer of the Services and Product Description or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

12.2

Except as expressly and specifically provided in this Agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Product Description by the Customer, and for conclusions drawn from such use. KEL shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to KEL by the Customer in connection with the Services, or any actions taken by KEL at the Customer's direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

(c) the Services and the Product Description are provided to the Customer on an "as is" basis.

12.3

Nothing in this Agreement excludes the liability of KEL:

(a) for death or personal injury caused by KEL's negligence; or

(b) for fraud or fraudulent misrepresentation.

12.4

Subject to clause 12.2 and clause 12.3:

(a) KEL shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:

(i) loss of profits,

(ii) loss of business,

(iii) depletion of goodwill and/or similar losses; or

(iv) loss or corruption of data or information, or

(v) pure economic loss, or

(vi) for any special, indirect or consequential loss, costs, damages, charges or expenses

however arising under this Agreement; and

(b) KEL's total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of £20,000 (twenty thousand pounds sterling) and 200% of the total Subscription Fees paid and payable by the Customer during the 12 months immediately preceding the date on which the claim arose.

13

TERM AND TERMINATION

13.1

This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with clause13, for the Initial Subscription Term, at the end of which it shall terminate automatically without notice unless, no later than the end of the Initial Subscription Term (or any Renewal Period agreed under this clause), the parties agree in writing that the term of the agreement shall be extended for a period of 12 months (Renewal Period). Unless it is further extended under this clause or terminated earlier in accordance with clause 13, the agreement shall terminate automatically without notice at the end of a Renewal Period. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term This clause 13.1 does not apply to Trial Basis accounts which can be terminated on notice at any time.

13.2

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(d) to clause 13.2(j) (inclusive);

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.3

On termination of this Agreement for any reason:

(a) all licences granted under this Agreement, and the Customer’s right to use the Services, shall immediately terminate;

(b) Customer will have no access to Customer Data;

(c) each party shall return and make no further use of any equipment, property, Product Description and other items (and all copies of them) belonging to the other party;

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

14

FORCE MAJEURE

KEL shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of KEL or any other party), failure of a utility service or transport or telecommunications network or hosting or connectivity provider, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15

CONFIDENTIALITY

15.1

Each party (the Receiving Party) shall keep the other’s (the Disclosing Party’s) confidential information confidential. In the case of KEL as the Disclosing Party, this includes all information (of any kind and in any format and coming into Customers knowledge, possession or control in any way) relating to KEL’s business, finance or technology, know-how, intellectual property rights, assets, strategy, products and customers, where the information is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given its nature or how it was disclosed (Confidential Information).

15.2

The Receiving Party shall not without KEL’s prior written consent use, disclose, copy or modify the Disclosing Party’s Confidential Information (or permit others to do so) other than as strictly necessary for it to be able to do what it is permitted and required to do under this Agreement and, where disclosure to its officers, employees, agents, professional advisers and contractors is necessary, Receiving Party shall ensure such persons are made aware of and agree in writing to observe these same obligations.

15.3

Confidential Information shall not include:

(a) any information that was known to the Receiving Party before that information was imparted by the Disclosing Party; or

(b) any information that is in or subsequently comes into the public domain (through no fault of the Receiving Party); or

(c) any information that is received by the Receiving Party without restriction on disclosure or use from a third party lawfully entitled to make the disclosure to the Receiving Party without such restrictions; or

(d) any information that is developed by any of the Receiving Party’s employees who have not had any access to, or use or knowledge of, that information imparted by the Disclosing Party; or

(e) any information that the parties agree in writing is not confidential.

15.4

Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.

15.5

Customer hereby grants KEL a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicenseable right and license to use any comments, suggestions, proposals or recommendations (“Feedback”) made by or on behalf of Customer in respect of the Services, and any such Feedback shall not be considered the Customer’s Confidential Information.

15.6

This clause 15 shall not affect the entitlement of KEL to use the Customer Data under the licence granted under clause 3.10.

15.7

Subject to clause 26.11 above, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16

WAIVER

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17

RIGHTS AND REMEDIES

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18

SEVERANCE

18.1

If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19

ENTIRE AGREEMENT

19.1

This Agreement constitutes the entire and exclusive agreement between KEL and Customer with respect to the Services and supersede and replace any other agreements, terms and conditions applicable to the Services. Purchase orders placed by Customer shall be for the sole purpose of specifying the Services that Customer wishes to purchase or has purchased. Any other terms stated in any purchase order delivered to KEL by Customer shall have no effect.

19.2

Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

20

ASSIGNMENT

20.1

The Customer shall not, without the prior written consent of KEL, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20.2

KEL may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21

NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22

THIRD PARTY RIGHTS

This agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23

GOVERNING LAW

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

24

DISPUTE RESOLUTION PROCESS

24.1

In the event of any dispute arising between the parties in connection with this Agreement which cannot be settled by negotiation, the parties shall in good faith, seek to resolve that dispute through mediation under the auspices of the ADR Group (UK). The mediator shall be agreed upon within 15 days of one party requesting mediation, failing which the mediator will be appointed by the then Chairman of ADR Group. Unless otherwise agreed the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days, or one of the parties refuses to participate in mediation, the dispute may be referred to litigation. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgement such action is necessary to prevent irreparable damage.

25

JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

26

INTERPRETATION

26.1

The definitions and rules of interpretation in this clause apply in this Agreement.

Account Data: information, including personal data, that KEL holds in respect of the Customer, its characteristics, Users and activities to the extent that they are received by KEL in the course of providing the Services.

Agreement: the agreement constituted by Customer’s acceptance on completing the Registration Form of these Terms of Service, any additional service-specific terms, and the details of Customer’s subscription on the Registration Form.

Anonymised Data: anonymous statistical and usage data related to use of the Service.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Customer Data: means Service Data and Account Data.

Customer: the corporate entity specified as the Customer on a Registration Form;

Effective Date: the start date of Customer’s Initial Subscription Term as specified in the Registration Form.

Initial Subscription Term: 12 months from the Effective Date.

KEL: Kluster Enterprises Ltd, a limited company registered in England and Wales under company number 09946422, whose registered office is at Priory Close, St Mary's Gate, Lancaster, United Kingdom, LA1 1XB.

Normal Business Hours: 9am to 5pm local UK time, each Business Day.

Permitted Usage: the use of the Services as specified with reference to parameters set out on the Registration Form, as increased or decreased by the Customer in accordance with this Agreement.

Product Description: the functions specified in the Registration Form, as detailed in the document made available to the Customer by KEL online via www.kluster.com or such other web address notified by KEL to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Registration Form: the online ordering for the Services completed by the Customer.

Renewal Period: the period described in clause 13.1.

Service Data: any information or data linked to, submitted to or stored within the Services by Users, including information accessed from the Customer’s Salesforce or CRM service account.

Services: the Kluster Intelligence predictive sales analytics service provided by KEL to the Customer under this Agreement.

Subscription Fees: the subscription fees payable by the Customer to KEL for the Permitted Usage, as set out in the Registration Form.

Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services Policy: KEL's policy for providing support in relation to the Services as made available in the accompanied Service Support Policy Document or such other website address as may be notified to the Customer from time to time.

User: any person to whom Customer provides access to or otherwise make available the Services in whole or in part in any form.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

26.2

Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

26.3

A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

26.4

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

26.5

Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

26.6

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

26.7

A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

26.8

A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

26.9

A reference to writing or written includes e-mail.

26.1

References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

26.11

We may revise these Terms of Service and any charges applicable to the Services, at any time by updating this posting or (in the case of increases to the charges) notifying you by means of email. Please check www.kluster.com from time to time to review the then current Terms of Service. KEL will notify Customer of any changes as they occur, and they will be binding on Customer as from the start of the Subscription Term following the date of the change.

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