Parties
(1) Cloud CX Ltd Ltd incorporated and registered in England and Wales with company number 13448920 whose registered office is at 128 City Road, London EC1V 2NX (Company)
(2) xxxxxxxxx incorporated and registered in xxxxxx with company number xxxxxx whose registered office is at xxxxxxxx (Customer)
SOFTWARE AS A SERVICE from CloudCX Ltd
These SOFTWARE AS A SERVICE AGREEMENT (Agreement) apply to every customer (whether paying or not) of the CloudCX Software As A Service offering. These Terms and Conditions apply to the provision of the applications detailed in our quotation (Services) by Cloud CX Ltd a company registered in England and Wales under number 13448920 whose registered office is at 128 CITY ROAD, LONDON, UNITED KINGDOM, EC1V 2NX (we or us or Company) to the person buying the
services (you or Customer).
These Terms and Conditions refer to the Company and the Customer as the “Parties” and may refer separately to any one of the Parties as a “Party.” These Terms and Conditions shall apply to the commercially available version of the CloudCX SaaS Applications and the services related thereto.
You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
1. DEFINITIONS.
1.1. “Agreement” means these Terms and Conditions.
1.2. “Application(s)” and/or “SaaS Application(s)” means those CloudCX software application programs which are made accessible for Customer to use under the terms of this Agreement.
1.3. “Billing Start Date” means the date the billing of the Monthly Service Fees commences as indicated on the applicable Subscription. The Billing Start Date of the Monthly Service Fees for any Services ordered by Customer after the date of this Agreement which are incremental to Customer’s then-existing Services shall be the date the applicable Subscription is executed by Company and Customer.
1.4. “Confidential Information” means any non-public information of a Party relating to such entity’s business activities, financial affairs, technology, marketing, or sales plans that is disclosed under this Agreement and reasonably should have been understood by the receiving party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the disclosing party.
1.5. “Customer Content” means all content Customer, or others acting on behalf of or through Customer, posts or otherwise inputs into the Services.
1.6. “Documentation” means technical publications published by the Company relating to the use of the Services.
1.7. “Data Controller” means the person or organization that determines the purposes and means of processing Personal Data. For example, a company that collects and decides how to use customer data.
1.8. “Data Processor” means the person or organization that processes Personal Data on behalf of the Data Controller. For example, a service provider manages data for the company but doesn’t decide how the data is used.
1.9. “Data Subject” means the individual to whom the Personal Data refers. This could be a customer, employee, or anyone whose data is being processed.
1.10. “Initial Term” means the initial term of the Services as indicated with the Subscription.
1.11. “Material Breach” means a Material Breach is when one party fails to do something important that was promised in the contract, causing significant harm to the other party.
1.12. “Monthly Service Fee(s) ” means the monthly fees described in a Subscription. Billing of the Monthly Service Fee(s) commences on the Billing Start Date.
1.13. “Personally Identifiable Data” means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation.
1.14. “Processing” means any operation performed on Personal Data, including but not limited to collecting, storing, using, disclosing, or deleting data.
1.15. “Renewal Term” means the renewal term of the Services as indicated on the Subscription.
1.16. “Services” means accessibility to the commercially available version of the Applications through access to the password-protected customer area of a Company website and all such services, items, and offerings accessed by Customer therein.
1.17. “Term” means the Initial Term and any Renewal Terms thereafter.
2. TERM.
2.1. The Services shall commence on the Billing Start Date and shall continue for the Initial Term or until terminated under the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated under the provisions hereof.
2.2. Customer may terminate the Services and this Agreement for convenience at any time. Company may terminate the Services and this Agreement to be effective at the expiration of the then-current Term upon no less than sixty (60) days prior written notice.
2.3. Either Party may terminate the Services and the Agreement upon a material breach of the Agreement by the other Party if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, the Company may suspend the Services immediately upon notice in the event of any Customer breach of Sections 4 (Rights to Use), or 5 (Acceptable Use).
2.4. If either Party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other Party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting Party’s reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting Party to terminate the Agreement immediately upon written notice to the other Party.
2.5. If the Agreement is terminated for any reason:
(a) Customer shall pay Company within thirty (30) days of such termination, all fees accrued under this Agreement before the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by Company, Company shall refund Customer any pre-paid fees for services not delivered by Company;
(b) Customer’s right to access and use the Applications shall be revoked and be of no further force or effect;
(c) No more than fifteen (15) days after termination, at the Customer’s written request, Company will provide to Customer, at no charge to Customer, the Customer Content. After such time period, Company shall have no further obligation to store or make available the Customer Content and will securely delete any or all Customer Content without liability;
(d) Customer agrees to timely return all Company-provided materials related to the Services to Company at Customer’s expense or, alternatively, destroy such materials and provide Company with an officer’s certification of the destruction thereof; and
(e) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
3. FEES AND PAYMENT.
3.1. Customer shall pay Company the Monthly Service Fees and any additional one-time, set-up, or recurring fees, all as more particularly outlined in the Subscription. Billing will commence on the Billing Start Date with the Monthly Service Fees to be billed on the frequency set forth with the Subscription (“Billing Frequency”). Unless otherwise indicated, the Company will bill the Customer for all implementation services in advance.
3.2. Customer authorizes Company to charge the debit card or credit card on file with Company in an amount equal to the Monthly Service Fees as all such fees become due under this Agreement. For all other payments and fees due under this Agreement, payment shall be due 30 days following the date of invoice unless otherwise indicated. Except as expressly outlined in the Agreement, all amounts paid to the Company are non-refundable.
3.3. Monthly Service fees shall be based on monthly periods that begin on the Billing Start Date. Monthly Service Fees shall be billed on the same day of the month as the Billing Start Date. If the specific month does not have the specified date, then the last day of the month will be used instead. Fees are accrued and invoiced in advance.
3.4. You must pay the Fees due within 30 days of the date of our invoice or otherwise by any credit terms agreed between us.
3.5. Paying on time is very important for us to continue providing the service.
3.6. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 4% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.
3.7. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off, or counterclaim against the other to justify withholding payment of any such amount in whole or in part.
3.8. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services that have been ordered by, or otherwise arranged with, you.
3.9. Payment receipts will be issued by us only at your request.
3.10. All payments must be made in British Pounds unless otherwise agreed in writing between us.
4. RIGHTS TO USE.
4.1. Subject to the terms and conditions of the Agreement, Company hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-assignable right to use during the Term and for internal business purposes only: a) the Applications and related services, including the Documentation and training materials; and, b) any embedded third Party software, libraries, or other components, which form a part of the Services.
4.2. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer acknowledges and agrees that the right to use the Services is limited based upon the amount of the Monthly Service Fees to be paid by Customer. Customer may not re-license or sub-license the Services, or otherwise permit use of the Services (including time-sharing or networking use) by any third Party, except as noted in section 4.4.
4.3. No license, right, or interest in any Company trademark, trade name, or service mark is granted hereunder. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations.
4.4. You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
4.5. Customer acknowledges and agrees that, as between Customer and Company, Company retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing. Customer will comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.
4.6. Company will make updates and upgrades to the Services (tools, utilities, improvements, third Party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services. Customer agrees to receive those updates automatically as part of the Services. Company also may offer new products and/or services to Customer at an additional charge.
4.7. Company reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services-related policies. Customer’s continued use of the Services after Company posts or otherwise notifies Customer of any changes indicates Customer’s agreement to those changes.
5. ACCEPTABLE USE.
5.1. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.
5.2. Customer represents and warrants to Company that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to Company that the Customer Content: (a) does not infringe or violate any third-Party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or, (c) is not hateful or threatening.
5.3. Customer will not (a) use, or allow the use of, the Services in contravention of any United Kingdom or foreign or other law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the Company systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or, (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
5.4. In relation to fair usage and monthly test volume inclusion:
5.4.1. Each test performed, whether voice or digital, shall be deemed as one unit of usage, except:
5.4.2. Where an individual test exceeds three minutes in duration, one unit of test will be considered used for the first three minutes and further unit(s) of test will be considered for each subsequent complete or partial three minute duration.
5.5. In relation to scope of use:
5.5.1. The use of the Service shall be restricted to the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of the Service by, or for the benefit of, any person other than an employee or client of the Customer);
5.5.2. The Customer may not use the Service other than as specified in the term and clause 5.41 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier;
5.5.3. Except as expressly stated in this clause 5, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction;
5.5.4. The Third-Party Software shall be deemed to be incorporated within the Service for the purposes of this agreement (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms;
5.5.5. The Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of any Third-Party Additional Terms howsoever arising;
5.5.6. The Supplier may treat the Customer’s breach of any Third-Party Additional Terms as a breach of this agreement.
5.5.7. Any software, tools, or intellectual property developed by the Company based on the Customer’s data or feedback shall be owned by the Customer or jointly owned, with prior written consent required for any commercial use by the Company outside the scope of this Agreement.
6. CUSTOMER CONTENT.
6.1. The Customer owns all Customer Content and grants the Company permission to use business data (in a non-identifiable form) to improve services.
6.2. The Company may monitor Customer Content to ensure compliance with this Agreement.
7. SERVICE LEVEL AGREEMENT.
Company shall: (a) provide basic support for the Services, (b) use commercially reasonable efforts to make the Services available, except for: (i) planned downtime (when it shall give at least 8 hours notice via the Services and shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Greenwich Mean Time), or (ii) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Company employees), internet service provider failures or delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and government regulations.
8. DATA PROTECTION.
8.1. As part of the Services, Company shall provide administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer data. Customer acknowledges that such safeguards endeavour to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Customer should consider any particular Company supplied security-related safeguard as just one tool to be used as part of Customer’s overall security strategy and not a guarantee of security. Both Parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.
8.2. When supplying the Services to the Customer, the Company may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Customer.
8.3. The parties agree that where such processing of personal data takes place, the Customer shall be the ‘data controller’ and the Company shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
8.4. For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
8.5. The Company shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested by and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party’s purposes.
8.6. The Company shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict ‘need-to-know’ basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations.
8.7. The Company shall implement and maintain technical and organizational security measures as are required to protect Personal Data Processed by the Company on behalf of the Customer.
8.8. Further information about the Company’s approach to data protection are specified in its Data Protection Policy, which can be found on our website. For any inquiries or complaints regarding data privacy, you can email: privacy@cloudcx.ai.
8.9. The Company shall only process Personal Data by the instructions provided by the Customer and shall not use Personal Data for any purposes other than those necessary for providing the Services. The Company shall promptly notify the Customer of any actual or potential data breaches related to Personal Data processed under this Agreement.
8.10 Access to Customer Data- The Customer acknowledges and agrees that the Company may access and process Customer Data, including but not limited to scripts, test results, and usage information, through its administrative portal solely for the purposes of providing support, troubleshooting, monitoring system performance, and improving the Services. The Company shall ensure that such access is strictly limited to what is necessary and shall implement appropriate technical and organisational measures to protect Customer Data. The Company shall not use Customer Data for any other purpose and shall comply with all applicable data protection and privacy laws, including, without limitation, the UK Data Protection Act 2018 and the UK/EU GDPR.
8.10 Access to Customer Data- The Customer acknowledges and agrees that the Company may access and process Customer Data, including but not limited to scripts, test results, and usage information, through its administrative portal solely for the purposes of providing support, troubleshooting, monitoring system performance, and improving the Services. The Company shall ensure that such access is strictly limited to what is necessary and shall implement appropriate technical and organisational measures to protect Customer Data. The Company shall not use Customer Data for any other purpose and shall comply with all applicable data protection and privacy laws, including, without limitation, the UK Data Protection Act 2018 and the UK/EU GDPR.
9. LIABILITY AND INDEMNITY.
9.1. Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
9.2. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract.
9.3. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
a. any indirect, special or consequential loss, damage, costs, or expenses
b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third-party claims; or
c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or
d. any losses caused directly or indirectly by any failure or your breach concerning your obligations; or
e. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
9.4. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
9.5. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
10. CIRCUMSTANCES BEYOND A PARTY’S CONTROL.
10.1. Neither Party shall be liable for any failure to perform due to circumstances beyond their reasonable control, such as natural disasters, civil unrest, or other unforeseen events.
10.2. If the delay continues for 90 days, either Party may terminate the Agreement.
11. COMMUNICATIONS.
11.1. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorized officer of that party).
11.2. Notices shall be deemed to have been duly given:
a. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
b. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
c. on the fifth business day following mailing, if mailed by national ordinary mail; or
d. on the tenth business day following mailing, if mailed by airmail.
11.3. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
12. NO WAIVER.
No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
13. SEVERANCE.
If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
14. LAW AND JURISDICTION.
This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
15. STATUS OF COMPANY.
Company is an independent contractor and not an employee of Customer. Nothing contained in this Agreement should be construed as creating an employment relationship, partnership, or joint venture between Customer and Company.
16. ENTIRE TERMS AND CONDITIONS.
This Agreement contain the entire understanding and agreement between the Parties and will not be modified, amended, or assigned except upon written consent of the Parties. Any attempted modification, amendment, or assignment in violation of this section is void.
17. NO THIRD-PARTY BENEFICIARIES; NO WAIVER.
This Agreement does not confer upon any person other than the Parties any rights or remedies whatsoever. No delay on the part of either Party or failure by a Party to exercise any power, right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any power, right or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in this Agreement are cumulative and not exclusive of any rights or remedies which either Party would otherwise have.
18. In-Country Dialling
18.1. Provision of Local Outbound Numbers: The Company will provide the Customer with up to three (3) local (geographic) phone numbers for use in connection with the Quick Test service, free of charge (FOC).
18.2. Charges for Additional Local Outbound Numbers: Any additional local (geographic), toll-free or mobile phone numbers requested by the Customer beyond the three (3) provided FOC, will be subject to additional charges. The fees for additional numbers will be communicated to the Customer and invoiced accordingly.
18.3. Local Use Only: The Company supports in-country dialling for local (geographic) numbers, which enables the Customer to make and receive calls within the same country as the provided local number.
18.4. Testing Toll-Free numbers: Where the Customer requires QuickTest to dial toll free numbers when testing, charges may apply depending on the local telecommunication regulations and rates in the relevant country. The Company will notify the Customer in advance of any such charges.
18.5. Call Charges: The Customer acknowledges and agrees that call charges may apply depending on the local telecommunication regulations and rates in the relevant country. The Company will notify the Customer in advance of any such charges.
