Last updated date: 12/10/2023
These general terms and conditions govern the relationship between CloudV (hereinafter referred to as the "Vendor") and its customers (hereinafter each individually referred to as the "Customer"). These terms and conditions may be amended from time to time. The Vendor shall promptly inform the Customer of any substantial changes to its general terms and conditions.
The Customer and Vendor agree to enter into a software as a service agreement (hereinafter referred to as the "Agreement"). During the subscription period, the Customer will receive a non-exclusive, non-transferable right to access and use the Solution (as defined hereinafter) solely for its internal business operations subject to the terms of this Agreement.
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.
3. Customer's obligations
The Customer cannot use the Solution for other purposes than as specified in this Agreement.
The Customer shall not distribute, sell, license or sub-license, let, trade, or expose for sale the Solution to a third party.
The Customer shall ensure that the Solution retains all Vendor's copyright notices and other proprietary legends and all trademarks or service marks of the Vendor.
Following definitions and abbreviations may apply:
- Agreement: the general terms and conditions and the specific terms and conditions (contained in the Proposal (as defined hereinafter).
- DE: Data Extension, the name used for tables of data inside the Salesforce Marketing Cloud.
- SFMC: Salesforce Marketing Cloud, cloud-based marketing software provisioned by Salesforce.com inc.
- Proposal: A document 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).
- Services: The whole of provisioning the Solution and the support with any issues directly related to the Solution by the Vendor towards the Customer.
- Solution: The cloud-based software referred to as "CloudV" which is developed and maintained by the Vendor and provisioned to the Customer.
- Support Services: The provisioning of support with issues related to the solution by the Vendor towards the Customer.
- Vendor: CloudV, a limited liability company under United Kingdom law, with office at Mansion House, Manchester Road, Altrincham, Cheshire, WA14 4RW, England, United Kingdom, registered with the Company number 14186704.
- Working Day: A regular business day in United Kingdom, with the exception of Saturdays, Sundays and public holidays.
The Solution is an app integrated into Salesforce Marketing Cloud that generate a lead score.
In addition, the Customer will also get access to a Lead Scoring portal/app in its own Salesforce Marketing Cloud instance to have a look at specific leads. Salesforce Marketing Cloud administrators may define which users gain access to the Solution.
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 CloudV activation and support.
The Vendor aims to set-up the Solution within ten (10) Working Days (or as otherwise agreed on in the Proposal) 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.
The Customer can report issues via the contact form accessible here.
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.
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.
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.
In case of prolonged outages lasting more than twenty-four (24) hours, the subscription 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:
- 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.
- Any period of unavailability lasting less than twenty-four (24) hours.
- 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.
The data will pass from the Customer’s Salesforce Marketing Cloud SFTP to the Vendor’s SFTP relying on Salesforce security system.
6.1. Intellectual Property
The Vendor maintains full ownership of all intellectual property rights contained in or related to the Solution. The Customer does not have and/or may not claim any intellectual property rights other than the non-exclusive Object Code license granted herein.
6.2. Third Party Intellectual Property
The Vendor shall indemnify the Customer against any and all losses, liabilities, costs and damages that the Customer may incur as a result of any claim that the Customer's possession and use of the Solution infringes any intellectual property rights of any third party.
Should any such claims be made against the Customer by a third party, then the Customer will inform the Vendor within 30 days so that the Vendor may defend against the claim.
The Vendor may use the Customer's logo and name on its website in the specific context of the Customer's use of the Solution, in order to allow the Vendor to promote its Services, provided that the Customer has provided permission in advance as to the way that the Customer's name and logo is to be used. The Customer may revoke this permission at any time and for any reason, and shall promptly inform the Vendor thereof.
6.4. Timing & Duration
The Agreement goes into effect as soon as both parties have signed and lasts for 12 months.
The Agreement goes into effect on the commencement date mentioned in the license agreement provided that the licence agreement has been signed by both parties. The Agreement runs for at least 12 (twelve) months from the commencement date. Provided that the Customer would like to keep using the Service beyond the initial twelve (12) months, a new licence agreement will have to be signed by both parties. Should either party wish to end the partnership, they will have to give at least sixty (60) days’ notice before the end of the current subscription term. The per-unit renewal pricing shall be the same as that during the immediately prior term 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 pricing increase shall be effective upon any such renewal and thereafter. Any such pricing increase shall not exceed 5% of the pricing for the relevant services provided in the immediately prior subscription term.
6.5. 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.
6.6. 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.
6.7. 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.
The Vendor may request the Customer to provide feedback, which the Customer will provide in a timely manner. This feedback may take the form of a survey, public review, or similar. The Vendor may use said feedback in any way in order to improve the quality of the Solution and the provision of Services.
6.9. Invoicing and Payment
Fees are due and payable within 30 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.
A late payment interest of 1% per month shall apply in case the Customer does not pay the fees within the 30 days payment term and shall be due as from the first day following the 30-day payment term.
The Customer is responsible for covering any bank transfer costs, currency exchange costs, taxes, or other costs associated with the payment other than the subscription fee itself.
All amounts are due in pounds (GBP).
All pricing is exclusive of VAT.
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 thirty (30) days if it believes its expectations have not been met. Upon such notification, the Vendor will use best efforts to meet these expectations.
6.11. Limitations of liability
6.11.1. Limitation of Liability.
Subject to the "Exclusion of Indirect Damages" section below and except in case of fraud or wilful misconduct, 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 (i.e. 500,000 EUR).
6.11.2. Exclusion of Indirect Damages.
Subject to section the "Limitation of Restrictions" section below, 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.
6.12. Data Protection
No personal data will be collected, shared, or processed by CloudV.
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.
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.
This clause will survive termination of this Agreement.
6.15. 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 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.
6.17. Governing law and dispute resolution
6.17.1. Governing law.
This Agreement is subject to United Kingdom law. 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 United Kingdom.
6.17.2. 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.
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