Definitions and Interpretation
In this Agreement the following terms shall have the following meanings:
- App: the Cloudline App & Analytics Dashboard developed, operated and owned by the Supplier.
- Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Charges: the charges payable by the Customer for the supply of the Services, as set out in the Contract Details.
- Contract Details means the details set out in the Order Form
- Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression and change of Control shall be construed accordingly.
- Customer Data shall mean any data that belongs to or relates to the Customer or any individuals permitted to use the Services by the Customer
- Customer Materials: all materials, drawings, images, branding, systems, specifications and data supplied by the Customer to the Supplier.
- Intellectual Property Rights (IPRs): patents, utility models, rights to inventions, copyright and related rights, moral rights, trade-marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Services: the services to be provided by the Supplier pursuant to the Contract, as described or referenced in the Contract Details
- Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
- Supplier IPRs: all Intellectual Property Rights subsisting in the Supplier Materials excluding any Customer Materials incorporated in them.
- Supplier Materials: all documents, products and materials developed or used by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).
- Commencement and term The Contract shall commence on the date signed by both parties and shall continue, unless terminated earlier in accordance with its terms, for the period set out [on the Order Form] or until either party gives to the other not less than [six] months' written notice to terminate, expiring on or after the first anniversary of the Services Start Date.
- Customer's obligations The Customer shall:Use the Services, including any Supplier Materials made available, solely for the purposes set out in this Agreement, and for no other purposes;Ensure that any users authorized by the Customer to receive the Services shall use the Services only in accordance with this Agreement;Attempt to reverse engineer or decompile the Supplier Materials, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software and/or Documentation (as applicable) in any form or media or by any means;License, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Supplier Materials available to any third party except as permitted under this Agreement; Be responsible for providing such equipment and connectivity required for the operation of the Services and for maintaining and preserving the security related to the Services (including passwords) so as to not allow any unauthorized access to the Services;provide, for the Supplier in a timely manner and at no charge, access to the Customer's premises, accommodation, data and other facilities as reasonably required by the Supplier to perform the Services; andpromote the use of the App at its own expense to its own customers in its own relevant marketing and information media wherever reasonably possible to the satisfaction of the SupplierIf the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
- Acceptable Use The Customer shall, and shall ensure that the users of the Services shall use the Service in accordance with an acceptable use policy to be published by the Customer requiring that nothing in the use of the Services:is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;facilitates illegal activity;depicts sexually explicit images;promotes unlawful violence;is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; oris in a manner that is otherwise illegal or causes damage or injury to any person or property including any software, virus, code, file or programme
- Third Party Providers In providing the Services, the Supplier may make use of third party providers including hosting providers. Delivery of the Services is subject to any terms and conditions that they may impose (in addition to these terms and conditions). Details of the third party terms are available from the Supplier or via its website.The Parties recognize that the Service is dependent upon third party providers of communications services, including mobile phone services, internet, wifi or other communications media. The Supplier shall not be liable if the Services are unavailable or unable to operate as a consequence of any failure by any third party provider of services.
- Charges and payment In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this clause 7.All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in the Order Form or otherwise on a monthly basis.The Customer shall pay each invoice due and submitted to it by the Supplier, as specified in the Order Form, to a bank account nominated in writing by the Supplier. Unless specified in the Order Form, payment will be made within 30 days.If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 11 (Termination):the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; andthe Supplier may suspend all Services until payment has been made in full.All amounts due under the Contract from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).Throughout the duration of this Contract, the Supplier shall have the right to conduct a quarterly reconciliation of the Charges paid against amounts that may be committed under the Contract (as set out in the Order Form). In the event that the Charges levied at the time of any such reconciliation are below any committed amount the Supplier shall have the right to adjust the Charges to an amount in line with the committed amounts.
- Intellectual property The Supplier and its licensors shall retain ownership of all Supplier Intellectual Property Rights in the Services and Supplier Materials. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.The Supplier grants the Customer, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Supplier Intellectual Property Rights for the purpose of receiving and using the Services in the Customer's business during the term of the Contract.The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.The Supplier shall indemnify the Customer in full against any sums awarded by a court against the Customer arising out of or in connection with any claim brought against the Customer for infringement of a third party's rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Customer, where such receipt or use is in accordance with this Contract.The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising of or in connection with any claim brought against the Supplier for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.
- Limitation of liability Nothing in the Contract shall limit or exclude the Supplier's liability for:death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;fraud or fraudulent misrepresentation;any other liability which cannot be limited or excluded by applicable law.Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for: loss of profits;loss of business; ;loss of anticipated savings;loss of use or corruption of software, data or information;loss of or damage to goodwill; andany indirect or consequential loss.Subject to clause 10.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 12 months average Charges (calculated by reference to the Charges in successive 12-month periods from the Services Start Date) paid by the Customer under the Contract.The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
- Term and Termination This Contract shall come into effect on the date of signature by both parties and will continue in effect for the period set out in the Order Form. Where no such term is set out in the Order Form, the Contract will be for one (1) year. At the expiration of the period, unless either party has given not less than sixty (60) days’ notice to the other party in writing terminating the Contract, the Contract will continue on a rolling one (1) year basis unless and until terminated by either party giving not less than sixty (60) days’ notice in writing terminating the Contract.Unless set out in the Order Form, the Contract is non-cancellable within the first year and thereafter can only be terminated in accordance with clause 11.1 above.Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; orthe other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.On termination of the Contract for whatever reason:the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; andtermination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
- Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- Assignment and other dealings. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier's prior written consent.The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
- Confidentiality. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 9.3(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.Each party may disclose the other party's confidential information:to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 9.3; andas may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under the Contract.
- Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Service Level Commitment. Excluding scheduled maintenance windows, Cloudline will use commercially reasonable efforts to maintain 99.8% availability of the hosted portion of the Service for each calendar month during the term of this Agreement. The Service will be deemed “available” so long as Authorized Users are able to login to the Service interface and access monitoring data. Excluding planned maintenance periods, in the event the Service availability drops below 99.8% for two consecutive months, Customer may terminate the Service in the calendar month following such two-month period upon written notice to Cloudline. To assess uptime, Customer may, if under a Paying Plan, request the Service availability for a prior month by filing a support ticket through the Site.
- Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); sent by email to the address specified in the Contract Details. A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, on the next Business Day after transmission.This clause shall not apply to the service of any proceedings or other documents in any legal action.
- Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Schedule 1 – The Services Cloudline App offers a cloud-based platform that enables businesses to efficiently manage and deliver onsite experiences and services to their customers through technology. This is distributed to the customer (end-user) through progressive web applications, managed through an admin web dashboard accessible by the client.A client is defined as a business using Cloudline App’s platform services with one or more accounts linked to a single dataset.Cloudline App’s core platform offers the following services:Real-time virtual queuing Session-based virtual queuing Mobile F&B ordering Activity analytics Activity data-storage.
- The Service have as an option the following:
Cloudline True-up Plan: This enables the Customer to use the Cloudline App in excess of the licensed entitlements for such Product(s) subject to a quarterly reconciliation. Under the reconciliation mechanism, Cloudline App will review Customer’s usage of the Product(s) on a quarterly basis. Where Cloudline App identifies that the Customer’s usage exceeds the licensed entitlements subscribed, Cloudline App will notify the Customer and either:(i) the Customer shall reduce its usage in line with the baseline licensed entitlements described in the Order Form (paying for any accrued undercharges) or (ii) the Customer shall purchase the additional amount of entitlements necessary to align its usage (including any accrued usage charges. Cloudline App shall be entitled and the Customer agrees to the adjustment to the invoicing and the recovery of underpaid amounts within the Subscription Period. Customer's inability to rectify the overage within such period may result in Cloudline App taking further steps to encourage Customer to rectify its non-compliance, including, but not limited to, significantly delayed responses to Customer technical support requests and, limiting access to, or degrading experiences of, various product features and the Products.