These Terms are a contract between the Customer (as defined in the Order Form) and Kluster Enterprises Limited ("Kluster"), a company incorporated and registered in England and Wales under company number 09946422. By accessing Kluster's services or signing an Order Form referencing these Terms of Service, you are agreeing on behalf of the Customer to be bound by these Terms, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these Terms, you are prohibited from using or accessing the Kluster service. Kluster’s products, services and materials are protected by applicable copyright and trade mark law. Certain capitalised terms used in this Agreement (such as “Services”) are defined in the Appendix, along with other provisions regarding the interpretation of these Terms of Service. Reference to “this Agreement” means these Terms of Service (including the Appendix), the Order Form, the Service Level Agreement, the Data Processing Terms and all materials referred or linked to in them.
This Agreement shall commence on the Subscription Start Date as defined in the Order Form and shall continue, unless terminated earlier in accordance with these Terms of Service, for the Initial Subscription Term as defined in the Order Form, and shall thereafter automatically extend for a further period of the same duration as the Initial Subscription Term (“Renewal Period”) at the end of the Initial Subscription Term and at the end of each Renewal Period. Either party may give email notice to the other party no later than 30 days before the end of the Initial Subscription Term or the relevant Renewal Period, to terminate this Agreement at the end of the Initial Subscription Term or the relevant Renewal Period, as the case may be.
Kluster undertakes that the Services will be performed substantially in accordance with the Product Description through the duration of the Subscription Term. If the Services do not conform to this undertaking, Kluster will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly in accordance with the Service Level Agreement, 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 this section.
Kluster may suspend Customer’s account or temporarily disable access to whole or part of the Services in the event of : (a) any suspected illegal activity, (b) any actual or suspected breach of this Agreement; (c) any requests by law enforcement or other government agencies.
Customer acknowledges that Kluster does not provide an archiving service, and that Kluster does not warrant that any level of back-up will be available in respect of the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Kluster to use reasonable commercial endeavours to restore the lost or damaged Customer Data.
Kluster shall not have any responsibility in respect of any loss, destruction, alteration or disclosure of Customer Data caused by any third party. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
The Customer acknowledges and agrees that, as between the parties, Kluster owns all right, title, and interest in and to the Services and all modifications (including the product of the Set Up Services and any Consultancy Services), including all Intellectual Property Rights in them.
The Customer shall (i) co-operate with Kluster in all matters relating to the Services;(ii) provide Kluster, its employees, agents, consultants and subcontractors, with access to the Customer's facilities as reasonably required by Kluster; (iii) provide Kluster with such information and materials as Kluster may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; (iv) obtain and maintain all necessary licences, permissions and consents which may be required for the Services; and (v) comply with all applicable laws.
Notwithstanding any other provision of these Terms of Service, the Customer acknowledges that its use of any Services which are notified by Kluster to Customer as being provided on a trial, evaluation, early access, test or similar basis (“Beta Services”) is entirely optional for the Customer, and that any Beta Service may not be supported, secured or maintained by Kluster in the same way as other Services. Kluster shall be entitled to change or withdraw Beta Services at any time by notice in writing. Beta Services are provided ‘as is’ and are not subject to the Service Level Agreement or the undertaking in the first part of this ‘Services’ section of these Terms. Kluster shall have no obligation to provide any maintenance, technical, or other support for the Beta Services.
Customer Data and Statistical Data
The Customer hereby grants to Kluster a royalty-free, non-exclusive, irrevocable, right to gather and process and store Customer Data (not including any personal data) solely for the purposes of: (a) providing, developing and improving the Services, and (b) deriving statistical and usage data related to use of the Services (“Statistical Data”), for internal use.
The Customer acknowledges and agrees that Kluster will be the owner of all right, title and interest in and to Statistical Data. For the avoidance of doubt, Customer’s grant of licence under this clause shall survive the expiry or termination of this Agreement.
Benchmarking and Revenue Insights Programme
The Benchmarking and Revenue Insights Programme ("The Programme") involves opted-in Kluster customers being granted access to benchmarks and insights of revenue trends in reports, datasets and other materials (“Programme Reports”), as and when they become available. In exchange, the customer grants Kluster the right to use Statistical Data derived from its data for these purposes.
If the Order Form states that the Customer has opted in to The Programme, the Customer permits Kluster at any time during or after the term of this Agreement to use Statistical Data, in combination with similar data from other Kluster users, to create and distribute Programme Reports and warrants and undertakes that Customer has all necessary rights and permissions to the Customer Data to authorise Kluster to do so. Kluster undertakes to ensure that the Customer shall not be identified or readily identifiable in any Programme Report.
Kluster hereby grants the Customer a non-exclusive, non-transferable, worldwide right to access and use the Services, for its own internal purposes, on the terms of this Agreement. This right is granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
The Customer shall use the Services in accordance with the limits on Sales Accounts specified in the Order Form. The Customer may purchase an additional Sales Account allocation in excess of that initially purchased and Kluster shall grant access to the Services for such additional Sales Accounts in accordance with the provisions of this Agreement, subject to agreement and payment of additional Subscription Fees. If such additional Sales Accounts are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such additional Subscription Fees shall be pro-rated from the date of activation of the additional Sales Accounts for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
The Customer may not permit the Services to be used by or for the benefit of any third parties. Nothing in the Terms of Service shall be construed to grant the Customer any right to transfer or assign rights to access or use the Services. All rights not expressly granted to the Customer are reserved by Kluster and its licensors. The Customer shall not (i) modify or make derivative works based upon the Services; or (ii) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar features, functions or graphics Kluster services, or (c) copy any features, functions or graphics of the Services.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services. In the event of any such unauthorised access or use, the Customer shall promptly notify Kluster.
The Customer undertakes to ensure that all Users comply with this Agreement and acknowledge that the 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.
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 Kluster immediately to suspend the account.
As a condition of use of the Services, the Customer (on its own behalf and on behalf of Users) and each User agrees not to use the Services nor permit them to be used as follows: for any purpose that is unlawful under any applicable law or prohibited by this Agreement; to distribute any malware or virus; in any manner that harms or may endanger any other person; to promote any unlawful activity; to gain unauthorised access to or use of any computers, data, systems, accounts or networks of any person; in any manner which may impair any other person’s use of the Services or use of any other services provided by Kluster to any other person; to attempt to circumvent any security controls or mechanisms; to attempt to circumvent any password or user authentication methods of any person; in any manner inconsistent with this Agreement or any terms agreed with Salesforce or any CRM solution provider to which the Services are connected; or in any manner which does not comply with the provisions relating to Intellectual Property Rights contained in this Agreement.
The Order Form specifies whether the provision of Consultancy Services is covered by the Subscription Fees. In the event that the Customer wishes to receive Consultancy Services, the parties shall agree the scope and output of the Consultancy Services. Any work undertaken and deliverables from Consultancy Services shall be subject to the terms of this Agreement.
Kluster shall not be obliged to work on more than one Consultancy Services project for the Customer at any time. The Consultancy Services will be provided with reasonable skill and care.
Kluster shall use reasonable endeavours to meet any performance dates specified in any agreed Project Plan, but any such dates shall be estimates only and time shall not be of the essence for performance of the Consultancy Services. The Customer acknowledges that the time for completion of Consultancy Services shall be extended in the event that it involves multiple Salesforce accounts, or the configuration of Customer’s Salesforce account has been significantly customised compared to standard Salesforce deployments.
All Intellectual Property Rights in or arising out of or in connection with the Consultancy Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Kluster.
The Customer shall pay Subscription Fees and any Set-Up Fee as set out in the Order Form. Kluster reserves the right to suspend all Services and Consultancy Services immediately if the payment terms are not adhered to.
Except as specified in this Agreement, Subscription Fees 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.
Except as stated in these Terms of Service, Kluster's services (including both the Services and the Consultancy Services) are provided “as is”, and Kluster makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Kluster does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the Services or the Consultancy Services.
Limitation of Liability
This sets out the entire financial liability of Kluster (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising (i) under or in connection with this Agreement; (ii) in respect of any use made by the Customer of the Services or any part of them; and (iii) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
Except as expressly and specifically provided in this Agreement: (i) 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; (ii) Kluster shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kluster by the Customer in connection with the Services, or any actions taken by Kluster at the Customer's direction; and (iii) 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.
Nothing in this Agreement excludes the liability of Kluster for death or personal injury caused by Kluster's negligence, or for fraud or fraudulent misrepresentation.
Kluster 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; (iv) loss or corruption of data or information, (v) pure economic loss; or (vi) for any special, indirect or consequential loss, costs, damages, charges or expenses, in all cases however arising under this Agreement.
Kluster's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, including any indemnity, shall be limited to 100%of the total Subscription Fees paid and payable by the Customer during the 12 months immediately preceding the date on which the claim arose.
The Customer shall defend, indemnify and hold harmless Kluster 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, provided that: (a) the Customer is given prompt notice of any such claim; (b) Kluster 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.
Kluster shall defend, indemnify and hold harmless Customer against claims, actions,proceedings, liabilities, expenses and costs (including without limitation court costs and reasonable legal fees) incurred by the Customer directly resulting from a third party claim made against the Customer that the Services infringe the Intellectual Property Rights of that third party (“IP Claim”), provided that: (a) Kluster is given prompt notice of any such claim; (b) Customer provides reasonable co-operation to Kluster in the defence and settlement of such claim, at Kluster's expense; and (c) Kluster is given sole authority to defend or settle the claim.
Kluster will not have any obligation or liability under this section if the IP Claim is caused by or based on: (i) any combination of the Services with any hardware, software, equipment, or data (including any Customer Data) not provided by Kluster or its agents; (ii) modification of the Services by anyone other than Kluster or its agents; or (iii) use of the Services otherwise than in compliance with this Agreement.
In the event of an IP Claim, or if Kluster believes that an IP Claim is likely, Kluster may, at its sole option and expense: (a) modify the Services or provide the Customer with substitute Services that are non-infringing; or (b) obtain a licence or permission for the Customer to continue to use the Services, at no additional cost to the Customer; or (c) if neither (a) nor (b) is, in Kluster’s judgment, commercially and technically practicable, terminate this Agreement on notice to the Customer and refund Subscription Fees pre-paid by the Customer, pro-rata to the portion of the Initial Subscription Term or Renewal Period (as the case may be) unexpired as of the date of termination. The foregoing states the Customer’s sole and exclusive rights and remedies, and Kluster’s entire obligations and liability, for infringement of third-party Intellectual Property Rights.
Either the Customer or Kluster may terminate this Agreement: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. Kluster reserves the right to suspend Customer’s access to the Services immediately if Customer fails to pay Kluster 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 Kluster will be entitled to suspend Customer’s access to the Services for up to 45 days, and/or terminate this Agreement without liability.
Modifications to this Agreement
Kluster may revise this Agreement at any time by email notice to the Customer.
Kluster will not use the Customer Data for any purpose other than as permitted under the licence in the Customer Data and Statistical Data section above. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
If Kluster 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 applicable data protection legislation, the Customer shall be the data controller and Kluster shall be a data processor and in any such case Kluster and the Customer agree that the Data Processing Terms shall be part of this Agreement.
In the event of any conflict between the Data Processing Terms and these Terms of Service, the Data Processing Terms shall prevail.
Third Party Providers
The Customer acknowledges and agrees that Kluster and/or its licensors own all intellectual property rights in the Services and the Product Description. Without limitation, the trade mark “Kluster”, the Kluster logo and all other trademarks, logos and service marks (the trademarks) which appear on Services are Kluster’s trademarks or are licensed for use by Kluster by the owners of those trademarks. Other trademarks (including“Salesforce.com”) are proprietary marks and are registered to their respective owners. Nothing contained in the Services should be construed as granting any licence or right to use any trade marks displayed on the Services without Kluster’s written permission or such other trade mark owner.
Except as expressly stated , this Agreement does not grant the Customer any rights to,or in, patents, copyright, database right, trade secrets, trade names,trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Product Description.
The Customer grants Kluster permission to use the Customer’s name, trade marks and/or logos in Kluster’s marketing and promotional materials (including its website),solely for the purpose of identifying the Customer as a client of Kluster. Kluster shall cease any further such use to the extent requested by the Customer in writing.
Kluster shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, by acts, events, omissions or accidents beyond its reasonable control, including without limitation: any act or omission of Salesforce or any CRM provider in respect of which Sales Accounts are linked; failure of a utility service or transport or telecommunications network or hosting or connectivity provider; Kluster’s compliance with any law; or default of suppliers or sub-contractors.
Other Important Terms
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.
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. 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.
This Agreement constitutes the entire and exclusive agreement between Kluster and Customer with respect to the Services and supersedes and replaces any other agreements, terms and conditions, arrangements, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written applicable or relating 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 Kluster by Customer shall have no effect.
The Customer shall not, without the prior written consent of Kluster, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Kluster 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.
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. 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).
Definitions and Interpretation
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Consultancy Services: ad hoc professional services agreed between the parties in writing to be provided by Kluster to create new reporting mechanisms and means of visualising Customer Data by means of the Services, and provide insights into optimisation of use of Kluster generally.
Customer: the entity or organisation specified as “Customer” in the Order Form.
Customer Cause: any of the following causes: (a) any improper use, misuse or unauthorised alteration of the Services by the Customer; (b) any use of the Services by the Customer in a manner inconsistent with the then-current Product Description;(c) the use by the Customer of any hardware or software not provided by Kluster or approved by Kluster in the Product Description for use by the Customer in connection with the Services.
Customer 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 other Third Party Provider account.
Data Processing Terms: the terms applicable in respect of Kluster’s processing personal data on behalf of Customer as set out from time to time at https://klusterpublic.blob.core.windows.net/resources/kluster-data-processing-terms.pdf
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, 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.
Order Form: the order form to which these Terms are linked or annexed.
Personal Data: bears the meaning ascribed to it in applicable data protection legislation.
Product Description: the functions of the Services as set out in the Order Form.
Sales Account: an individual Salesforce or other CRM account, corresponding to an individual member of the Customer’s sales team, linked to the Services.
Service Level Agreement: the Service Level Agreement as linked to from the Order Form.
Service Levels: the service level responses and response times referred to in the Service Level Agreement.
Set Up Fee: the fee specified in the Order Form in relation to the Set Up Services.
Set Up Services: the initial configuration, customisation and installation services agreed between the parties.
Subscription Fees: the fees specified in the Order Form in respect of access to the Services in respect of the number of Sales Accounts specified in the Order Form, and the Consultancy Services.
Subscription Term: Initial Subscription Term together with any subsequent Renewal Periods
User: any person to whom Customer provides access to or otherwise makes available the Services in whole or in part in any form.
References in this Agreement to:
a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; and writing or written includes e-mail.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.