Terms and conditions

Last updated date: 08/05/2024

 

1. Basis of contract

The Proposal constitutes an offer to the customer named therein (hereinafter referred to as the "Customer") to purchase the Services from CloudV Limited (hereinafter referred to as the "Vendor") in accordance with these general terms and conditions and any special conditions set out in the Proposal. The Proposal shall only be deemed to be accepted when the Customer issues written acceptance of the Proposal at which point, and on which date the Agreement shall come into existence ("Commencement Date"). These general terms and conditions may be amended from time to time and apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing. The Vendor shall promptly inform the Customer of any substantial changes to its general terms and conditions.

2. SaaS

2.1 The Customer and Vendor agree to enter into a software as a service agreement (hereinafter referred to as the "Agreement"). During the period of this Agreement, the Customer will receive a limited, non-exclusive, non-transferable licence to access and use the Solution (as defined hereinafter) solely for its business operations subject to the terms of this Agreement.

2.2 The Customer acknowledges that this Agreement is a services agreement, and the Vendor shall not deliver copies of the Solution to the Customer as part of the SaaS services. The licence granted hereunder also extends to any and all free updates, patches, fixes and similar that the Vendor may provide. The following restrictions shall apply to the licence:

2.2.1 The Customer may not translate, reverse-engineer, decompile, disassemble, modify, or create derivative works based on the Solution (or any part thereof) except as expressly permitted by law or this Agreement. Sections 50B and 296A of the Copyright Designs and Patents Act 1988 permit such actions only where they are necessary to obtain information necessary to create an independent software program which can be operated with the Solution or with another software program ("the permitted objective"). The information obtained from such actions must not be used for any other purpose.

2.2.2 The actions described in sub-Clause 2.2 will not be permitted if the Customer:

2.2.2.1 already has readily available to it the information necessary to achieve the permitted objective;

2.2.2.2 does not confine the decompiling to such acts as are necessary to achieve the permitted objective;

2.2.2.3 supplies the information obtained by the decompiling to any person to whom it is not necessary to supply it in order to achieve the permitted objective; or

2.2.2.4 uses the information to create a software program which is substantially similar in its expression to the Solution or to do any other act restricted by copyright.

2.2.3 The Customer may not modify, adapt, alter, translate, or otherwise change the Solution or any accompanying documentation or any part thereof or combine, incorporate in, or merge the Solution with any other software.

2.2.4 The Customer may not make the Solution available over a network or by any other method of remote access.

2.2.5 The Customer may not make the Software or documentation available to a third party in any form or for any reason without the prior written consent of the Vendor.

3. Customer's obligations

3.1 The Customer cannot use the Solution for other purposes than as specified in this Agreement.

3.2 The Customer may not rent, lease, sub-licence, sell, assign, pledge, or otherwise dispose of or make use of for another person or business the Solution or the documentation.

3.3 The Customer may not alter, delete, or otherwise obscure any notices of proprietary rights (including, but not limited to, copyright) or any product identification or restrictions on or in the Solution or documentation.

3.4 The Customer hereby undertakes and agrees that:

3.4.1 They shall use, and permit the use of, the Solution only in accordance with the terms of this Agreement;

3.4.2 They shall supervise and control any use of the Solution by its employees and any authorised users and ensure that any user of the Solution is notified of the terms and conditions of this Agreement, understands them, and complies with them; and

3.4.3 They will comply with all applicable laws, rules, and regulations governing technology control.

4. Definitions

Following definitions and abbreviations may apply:

 line_start_square Agreement: the legally binding contract that is created when the Proposal is accepted by the Customer and which shall be in accordance with these terms and conditions and any specific terms and conditions contained in the Proposal (as defined hereinafter).

 line_start_square DE: Data Extension, the name used for tables of data inside the Salesforce Marketing Cloud.

 line_start_square Proposal: An order form containing the specific terms and conditions (including, but not limited to, a description of the Solution in view of the specific context of the Customer and for which purposes it may be used in relation thereto).

 line_start_square Services: The provision of the Solution and the support with any issues directly related to the Solution by the Vendor towards the Customer.

 line_start_square SFMC: Salesforce Marketing Cloud, cloud-based marketing software provisioned by Salesforce.com inc.

 line_start_square SFTP: is a network protocol for securely accessing, transferring, and managing large files and sensitive data.

 line_start_square Solution: The cloud-based software referred to as "CloudV" which is developed and maintained by the Vendor and supplied to the Customer.

 line_start_square Support Services: The provisioning of support with issues related to the solution by the Vendor towards the Customer.

 line_start_square Vendor: CloudV Limited, a limited liability company incorporated under English law, with its registered office at Mansion House, Manchester Road, Altrincham, Cheshire, WA14 4RW, England, United Kingdom and registered with company number 14186704.

 line_start_square Working Day: A regular business day in United Kingdom, with the exception of Saturdays, Sundays and public holidays.

5. Solution

5.1 Specifications

The Solution is an app that can be integrated into Salesforce Marketing Cloud. The specific functionality of the Solution shall be described on the Vendor’s website depending on the package relating to the Solution that the Customer has subscribed to, as described in in any email communication between the Vendor and the Customer and as detailed in the Proposal.

The Customer will also get access to a Solution in its own Salesforce Marketing Cloud instance. Salesforce Marketing Cloud administrators will define which users gain access to the Solution.

If the Solution the Customer has subscribed to has language translation functionality the following shall apply:

 line_start_square The Solution utilises automated translation powered by AI technology, which may not guarantee perfect accuracy. The Vendor provides no warranty or assurance regarding the precision or correctness of translations. It is the Customer's responsibility to review and approve the final translated content before use. The Vendor shall not be held liable for any inaccuracies or errors in translation.

 line_start_square The Solution uses OpenAI technology to generate email copy and calls to action based on provided prompts. The Customer acknowledges and understands that the use of OpenAI may result in email content that is not entirely unique, as OpenAI is a publicly available AI platform. The Customer accepts that the generated email copy may resemble content created by other users of OpenAI.

 line_start_square The Solution stores a maximum of the last 50 emails created by the Customer. Beyond this limit, older emails will be automatically deleted and cannot be recovered. The Customer is advised to save or back up any important email content generated by the Solution if long-term retention is required.

 line_start_square The Vendor reserves the right to modify or discontinue the use of OpenAI or any other AI solution at its discretion. In the event that OpenAI is acquired by another entity or undergoes significant changes that affect the provision of services and the Customer’s use of the Solution, the Vendor may need to transition to an alternative AI solution. The Customer acknowledges and accepts that such changes may impact the functionality and performance of the Solution.

5.2 Set-up

In order to allow the Vendor to set-up the Solution within the SFMC environment of the Customer, the Customer will provide the Vendor with at least one SFMC user account with full access for the Vendor’s activation and support.

The Vendor aims to set-up the Solution within 15 (fifteen) Working Days (or as otherwise agreed on in the Proposal), unless an unforeseen event occurs which prevents the Vendor from completing the set-up within this timeframe such as, but not limited to, an action or inaction of the Customer or an issue with the SFMC environment of which the Vendor has no control over, as from the moment the Customer has provided (i) the above SFMC user account with the required access and (ii) all other requested or required information needed by the Vendor to start with the set-up. After set-up, no SFMC user account is needed anymore, though, temporary access to an account may be requested to resolve support issues.

5.3 Future Releases

The Vendor may at certain times release new features that aim to improve the overall user-friendliness and functionality of the Solution at no additional cost for the Customer.

5.4 Support

5.4.1 The Customer can report issues via the contact form accessible here.

5.4.2 In the case of issues, the Vendor will use commercially reasonable efforts to promptly respond to each case and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround, or other solution in the Vendor's reasonable determination.

5.4.3 The Customer may indicate the priority of issues and will describe issues to its best effort, including steps taken prior to the issue, screenshots, description of the issue, information regarding the browser or operating system used, remedial actions already attempted by the Customer, and any other information the Vendor may consider relevant to resolve the issue.

5.4.4 If needed, the Customer will provide the Vendor access to its SFMC environment through a user account with the specific goal of resolving issues or, if applicable, will ensure any of its affiliates or suppliers responsible for the administration of its SFMC environment can provide the necessary access.

5.4.5 The following shall apply to any support requests:

5.4.5.1 The Vendor shall make best efforts to address support tickets during regular business hours, Monday to Friday, excluding weekends and bank holidays. Any support enquiries received during non-business hours shall be addressed promptly during the next business day.

5.4.5.2 Upon receipt of a support ticket, the Vendor shall endeavour to provide an initial response within 24 hours, and subsequently, shall provide the Customer with a reasonable estimate of the time required to resolve the issue, taking into account the complexity and severity of the reported issue.

5.4.5.3 The Vendor shall not be responsible for addressing support tickets arising from circumstances including, but not limited to:

 line_start_square Actions taken by the Customer that affect the functionality of the application.

 line_start_square Changes made by Salesforce that impact the integration with the Solution.

 line_start_square Addition of third-party software by the Customer leading to conflicts with the Solution.

In such cases, the Vendor reserves the right to charge for time spent resolving the issue at their standard rates.

5.4.6 In instances where further information is deemed necessary for the resolution of support issues, the Vendor may request a call with the Customer to troubleshoot and rectify reported issues efficiently.

5.5 Uptime

In case of prolonged outages lasting more than twenty-four (24) hours, the period of the Agreement will be extended at no additional cost to the Customer with the duration of the downtime as sole and exclusive remedy for the Customer.

Excluded from the definition of 'outage' in the previous sentence is:

 line_start_square Any planned downtime of which Vendor gives twenty-four (24) or more hours' notice via email and/or on-screen message within CloudV. Vendor will use commercially reasonable efforts to schedule all planned downtime during the hours from 6.00pm Friday to Sunday 11pm GMT.

 line_start_square Any period of unavailability lasting less than twenty-four (24) hours.

 line_start_square Any unavailability caused by circumstances beyond Vendor's reasonable control, including, without limitation, force majeure, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other label problems (other than those involving Vendor's employees), denial-of-service attacks or third-party Internet service provider failures or delays.

5.6 Security

The data will pass from the Customer’s Salesforce Marketing Cloud SFTP to the Vendor’s SFTP relying on Salesforce security system.

The Vendor shall adhere to Salesforce’s security standards and protocols for data transmission and storage, ensuring that all data passing through Salesforce’s systems when using the Solution maintains the highest level of security and integrity.

6. Miscellaneous

6.1 Intellectual Property

The Vendor maintains full ownership of all intellectual property rights contained in or related to the Solution. Subject to clause 2, the Customer does not have and/or may not claim any intellectual property rights to the Solution.

6.2 Reference

The Vendor may display the Customer's logo and name on its website solely to showcase the Customer's use of the Solution for promotional purposes. However, such usage requires prior permission from the Customer regarding the specific manner of display. The Customer retains the right to revoke this permission at any time and must promptly notify the Vendor of any such revocation.

6.3 Timing & Duration

6.3.1 The Agreement starts on the Commencement Date and shall continue for 12 months ("the Initial Period") and thereafter on a continuous rolling 12-month basis (‘Renewal Period’).

6.3.2 Termination shall occur as follows:

6.3.2.1 The Customer shall be entitled to terminate the Agreement by providing the Vendor with 3 months’ written notice such notice shall not expire before the end of the Initial Period and any subsequent Renewal Period.

6.3.2.2 The Vendor shall be entitled to terminate the Agreement by providing the Customer with 30 days’ written notice at any time.

6.3.3 The per-unit renewal pricing shall be the same as that during the immediately prior Initial Period or Renewal Period unless the Vendor has given the Customer written notice of a price increase at least 90 days before the end of such prior term, in which case the price increase shall be effective upon any such Renewal Period. Any such pricing increase shall not exceed 5% of the pricing for the relevant services provided in the immediately prior period of the Agreement term.

6.4 Early termination

Each party may terminate the Agreement with immediate effect at any time upon sending a written notice to the other party in one of the following situations:

(a) if either party is bankrupt, or subject to any other insolvency proceeding (whether voluntary or involuntary), receivership, administrative receivership, assignment for the benefit of creditors, and/or liquidation; and/or

(b) if either party commits a material (unremedied) breach of the Agreement, fraud, or anything of a similar nature.

(c) if the Vendor can no longer deliver the service for any reason.

6.5 Breach of contract

Prior to any claim for termination of this Agreement for breach of contract, the defaulting party will have the opportunity to remedy any such alleged breach (to the extent remediation is possible and makes sense).

If a party fails to comply with any provision of this Agreement, the other party will deliver written notice thereof to the defaulting party specifying the non-compliance. The defaulting party will have fifteen (15) days (or shorter if the circumstances reasonably require so) after receipt of such notice to remedy the non-compliance. With respect to non-compliance with payment obligations under this Agreement, the defaulting party will have fifteen (15) days after receipt of the written notice to fulfil the outstanding payment obligations.

If the defaulting party fails to remedy such breach within the aforementioned period, the other party may terminate this Agreement with immediate effect upon written notice to the defaulting party.

Any (implicit or explicit) waiver by any party for a breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach, whether of a similar or dissimilar nature.

6.6 Obligations on termination

Upon termination of this Agreement for whatever reason, either party shall, at the request of the other party, return any document, material, database, equipment, license, or software containing confidential information to the other party. If, for any reason, such document, material, database, equipment, license, or software cannot be returned, such party shall destroy all the confidential information belonging to the other party and delete such confidential information from any memory devices.

The right of the Customer to use the Solution is immediately terminated upon termination, for any reason whatsoever, of this Agreement.

Any Metadata that has been stored by the Vendor on behalf of the Customer shall be stored for another sixty (60) days following termination of this Agreement. After the aforementioned period, the Metadata shall be deleted from the Vendor's databases.

The termination of this Agreement shall not release the parties from their obligations to pay the sums due under this Agreement to the other party or from the obligation to perform any other duty or to discharge any other liability that has been incurred prior thereto under the Agreement.

All clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect.

6.7 Feedback

The Vendor will, from time to time, request the Customer's feedback on the Solution. Feedback options include surveys, public reviews, or similar means. The Vendor will use this feedback to enhance the Solution's quality and service provision.

6.8 Invoicing and Payment

6.8.1 The Vendor shall send the Customer an invoice upon the Commencement Date and the Fees are due and payable within 7 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to the Vendor and notifying the Vendor of any changes to such information.

6.8.2 Any sums which remain unpaid following the expiry of the payment due date shall incur interest on a daily basis at 8% above the base rate of the Bank of England from time to time until payment in full is made. In addition, the Vendor reserves the right to be paid on an indemnity basis on any costs it incurs in recovering any money due under the Agreement (and the costs of recovering such costs) including any administrative costs and any costs incurred with lawyers or debt collection agencies. The Vendor’s administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent.

6.8.3 Where any sums remain unpaid for more than 30 days following payment due date, the Vendor shall also rely on its right to compensation at the fixed rates under the Late Payment of Commercial Debts (Interest) Act 1998.

6.8.4 The Customer is responsible for covering any bank transfer costs, currency exchange costs, taxes, or other costs associated with the payment other than the Agreement fee itself.

6.8.5 All amounts are due in pounds (GBP). All pricing is exclusive of VAT which, if applicable, shall be charged to the Customer at prevailing rates.

6.8.6 The Vendor reserves the right to suspend access to the Solution until such time that payment is received in full, including any late payment interest incurred.

6.8.7 Time is of the essence regarding payment obligations under the Agreement. Failure to make payments by the specified due dates shall constitute a material breach of the agreement.

6.9 Warranty

The Solution is provided by the Vendor on an "as is" basis and is only fit for the purposes contained in this Agreement. It is therefore the responsibility of the Customer to ensure that the Solution meets its own individual requirements.

Notwithstanding the above, the Vendor aims to meet the Customer's expectations to its best efforts. The Customer may notify the Vendor within 30 (thirty) days if it believes its expectations have not been met. Upon such notification, the Vendor will use best efforts to meet these expectations.

6.10 Limitations of liability

6.10.1 Limitation of Liability.

Subject to the "Exclusion of Indirect Damages" section below and except in case of fraud or wilful misconduct or any other liability that cannot legally be limited, the Vendor's liability with respect to any single incident arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall be limited to the amount of fees paid by the Customer hereunder in the twelve (12) months immediately preceding the relevant incident, provided that in no event shall the Vendor's total aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) exceed the maximum amount that is covered by its liability insurance.

6.10.2 Exclusion of Indirect Damages.

Subject to the "Limitation of Liability" section above, in no event shall either party have any liability to the other party under or in relation to this Agreement, whether in contract, tort or under any other theory of liability for:

(a) any financial damages as a result of loss or damage to property, economic loss, cost of replacement services, loss of profits, loss of revenue, loss of orders, loss of goodwill, and/or loss resulting from damage to image or reputation in each case whether direct or indirect, or

(b) any indirect or consequential loss or damage arising from or related to this Agreement, howsoever caused and whether or not such losses are foreseeable, even if that party has been advised (or is otherwise aware) of the possibility of such losses in advance.

6.11 Data Protection

No personal data will be collected, shared, or processed by CloudV during the Customer’s use of the Solution.

The Vendor will only use the Customer’s personal information as set out in the Vendor’s Privacy Policy available here: https://www.cloudv.co.uk/privacy-policy.php

6.12 Re-assignment

The Vendor may re-assign the rights and obligations under this Agreement to an affiliated company (e.g., in case the founders incorporate a new company in light of internal reorganization).

The rights and obligations under this Agreement can only be re-assigned by the Customer with prior written consent by the Vendor.

6.13 Confidentiality

The receiving party shall keep in strict confidence all Confidential Information disclosed or made available to it by the disclosing party, its employees, agents, consultants or subcontractors, and any other Confidential Information concerning the other party's business, customers, potential customers, or its products the receiving party may obtain. The receiving party shall restrict disclosure of such confidential material to such of its employees, agents, consultants, or subcontractors as need to know it for the purpose of inter alia discharging each party's obligations to the other party, and shall ensure that all relevant employees, agents, or subcontractors are subject to obligations of confidentiality corresponding to those that bind the receiving party. "Confidential Information" shall mean any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, methods, technology, technical data, personnel and suppliers of the Customer and the Vendor, together with all information derived by either party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked "confidential") or that should reasonably be considered confidential or is in relation to other matters connected with the Solution or the Customer's SFMC environment, and information concerning the Customer's relationships with actual or potential clients, customers, suppliers and the needs and requirements of such persons.

Either Party may disclose any Confidential Information to:

 line_start_square any sub-contractor or supplier of that party;

 line_start_square any governmental or other authority or regulatory body; or

 line_start_square any employee or officer of that party or of any of the aforementioned persons, parties or bodies;

to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Solution), or as required by law. In each case that party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as detailed above or any employee or officer of any such body) obtaining and submitting to the other party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this clause 6.13, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.

This clause will survive termination of this Agreement.

6.14 Force majeure

In the event either party is unable to perform its obligations under the terms of this Agreement because of events or circumstances reasonably beyond its control, including but not limited to, acts of God ('Force Majeure'), cyberattacks, equipment or transmission failure, such party shall not be liable for damages to the other for any damages resulting from such failure to perform.

In the event that as a result of Force Majeure the Vendor cannot perform their obligations under the Agreement for a continuous period of 90 days, either party may at their discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Vendor shall be entitled to retain from funds received or still due from the Customer such costs, expenses and disbursements which the Vendor has reasonably incurred or for which they are liable to any third parties in connection with the provision of the Services and such contribution to the Vendor overhead as shall be reasonable and shall return any balance to the Customer. The Vendor may, but shall not be obliged to, take such steps as they shall in their discretion consider reasonable to recover any such costs and expenses from the relevant third parties and shall, subject to deduction of costs incurred in connection therewith, reimburse any sums so recovered to the Customer.

The Vendor shall advise the Customer in writing as soon as possible if and when any such Force Majeure event occurs and at the same time provide an estimate to the Customer of how long the event is likely to continue and its likely impact on the performance of the Vendor’s obligations.

6.15 Third Party Rights

No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.

6.16 No Waiver

No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

6.17 Set-Off

Neither party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.

6.18 Further Assurance

Each party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.

6.19 Costs

Subject to any provisions to the contrary each party to the Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.

6.20 Severability

In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall, to the extent permitted by law, not in any way be affected or impaired thereby.

6.21 Governing law and jurisdiction and dispute resolution

6.21.1 Governing law and jurisdiction.

This Agreement, 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 laws of England and Wales. No effect shall be given to any other choice of law or to any conflict-of-laws rules or provisions that would result in the application of the laws of any country other than the laws 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 (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

6.21.2 Dispute resolution.

The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of the relevant Parties, then each such Party will nominate one senior officer as its representative. These representatives will, within 10 business days of a written request by any such party involved in that dispute, call such a meeting, and will attempt in good faith to resolve the dispute. If the dispute cannot be resolved by such senior officers in such meeting, the parties agree that they will, if requested in writing by either such party, meet within 10 business days after such written notification for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within, 10 business days after the one-day mediation, either such Party may begin litigation proceedings. This procedure will be a prerequisite to any party issuing legal proceedings in respect of any dispute regarding this Agreement.