Terms of Services - Cleever Merchants
PLEASE READ THESE TERMS OF SERVICE (“TERMS”, “TERMS OF SERVICE”) CAREFULLY BEFORE USING OUR SERVICES (THE “SERVICE”) OPERATED BY PROCESSING TECHNOLOGY LTD., UNDER ITS TRADEMARK CLEEVER (“CLEEVER”, “COMPANY”, “US”, “WE”, “OUR”).
THESE TERMS OF SERVICE AND THE SALES ORDER REFERENCING THESE TERMS OF SERVICE (THE “SALES ORDER”, AND TOGETHER WITH THESE TERMS OF SERVICE, “AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH PROCESSING TECHNOLOGY LTD. (“PROCESSING TECHNOLOGY”, “CLEEVER”) PROVIDES ITS SERVICES TO THE RETAILER (AS DEFINED IN THE SALES ORDER) ACCESSING AND INTEGRATING CLEEVER’S PROPRIETARY APPLICATION PROGRAMMING INTERFACES (THE “API”) AND/OR ITS CLEEVER MEMBERSHIP, OR OTHERWISE RECEIVING THE BENEFIT OF CLEEVER’S SERVICES. BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, RETAILER IS ENTERING INTO A LEGALLY BINDING AGREEMENT WITH CLEEVER.
IF RETAILER DOES NOT AGREE TO THIS AGREEMENT, RETAILER MUST NOT COMPLETE THE ORDER PROCESS AND MUST NOT USE THE SERVICE. TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE SALES ORDER.
1.Provision of the Service.
1.1 Provision Generally
1.2 Description of the Service
Cleever operates 2 services :
- “Cleever Checkout Service”: This service is supplied by Cleever to the Retailers and involves an integrated payment infrastructure allowing Retailers to accept card payment. Our technology is proprietary, using payment capacities provided by Stripe, a US processing company.
- “Cleever Membership”. This service is supplied by Cleever to Members and is a program offered to all our Members who make payments for their purchases to those Retailers who use the Cleever Checkout Service. The Cleever Membership grants Members access to call upon the Promise (as set out in section 1.4).
1.3 Cleever Membership offer to the Retailer’s Customers
By registering and installing our Cleever Checkout Service on its website, the Retailer hereby authorizes Cleever to offer access to Cleever Membership to all customers making payments to that Retailer through the Cleever Checkout Service.
If the Customer accepts to join our Cleever Membership, they will become a Cleever Member and the Retailer acknowledges and agrees that:
- the Retailer is not part of the contractual relationship created between the Member and Cleever.
- the Retailer will remain solely and contractually responsible for the purchase made by the Customer through the Retailer website.
- Cleever is not involved and/or responsible for the selling and distribution of the product disclosed on the Retailer website and in relation to which Cleever only operates as a third party in processing of the underlying payment.
- the Retailer remains solely and exclusively responsible for the effective delivery, the quality and all liabilities of the products for which payment was made by utilising the Cleever Checkout Service.
1.4 The Promise and the Payback
When purchasing goods or service from a Retailer, an individual customer will be offered at the point of “checkout” to pay using the Cleever Checkout Service. At checkout, when clicking on the link representing the Cleever Checkout Service to pay for their purchase, that individual customer will be offered the opportunity to become a Member.
A Member will pay a membership fee as consideration for the Company’s promise that on each occasion when the Member places an order with a Retailer, the Company will pay a sum of money for the benefit of the Member to be used by that Member exclusively towards that Member’s payment of the consideration for that Member’s order (the “Promise”). On each call by a Member on the Promise, the payment by the Company shall amount to a fixed amount of £5 for the benefit of the Member. We reserve the right to change the amount payable by the Company on each occasion a Member calls on the Promise and will give you 30 days advance notice before doing so. When called, the amount representing the Promise will be deducted from the total amount due from the Member to the Retailer at the point of checkout in respect of the purchase, reducing the total price to be paid by the Member to the Retailer. Pursuant to the terms agreed with each Member, each Member agrees and authorises the Company to pay, on behalf of the Member, the amount representing the Promise directly to the Retailer with whom the purchase order was processed. Once called upon by a Member, a Promise will be paid to the Retailer, only upon successful completion of the underlying purchase(s) Cleever has been mandated to process. The Promise amount will be paid directly by Cleever to the Retailer fund balance as authorised by the Member.
1.5 Grant of Rights
Subject to the terms and conditions of this Agreement, Cleever hereby grants to Retailer a limited, non-exclusive, non-transferable right for Retailer’s Users (as defined below) to access and use the Service, solely for Retailer’s internal business purposes during the Term. A “User” shall mean an employee or independent contractor of Retailer. All rights not expressly granted to Retailer are reserved by Cleever and its licensors. There are no implied rights.
1.6 Eligibility Requirements
By entering into this Agreement, Retailer represents and warrants that Retailer meets the following minimum requirements (“Eligibility Requirements”):
- Retailer is at least 18 years old and has the legal capacity to be bound by this Agreement;
- Retailer has the necessary rights and authority to enter into and perform the obligations required of Retailer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable;
- All information which Retailer provides, including but not limited to information provided during registration, information about Retailer and any third -party business, and all relevant payment information, is within Retailer’s right to use, and is and will remain accurate, complete and current;
- Retailer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) None of the Retailer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and
- Retailer will provide Cleever with any information, records, or materials that we request to verify Retailer’s compliance with the eligibility requirements set forth above and the terms and conditions of this Agreement.
Retailer shall not (and shall not allow any third party to):
- use the Service for the benefit of any third party (for the avoidance of doubt, Retailer’s partners and clients may benefit from Retailer’s use of the Service and such benefit shall not constitute a violation of this provision), or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein;
- permit any third-party to access or use the Service except as envisioned by the Service in its normal operation or specified herein;
- sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service, directly or indirectly, to any third party;
- alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; or
- use any robot, spider, scraper or other automated means to access the Service in an unauthorized manner, or engage in any scraping, data- mining, harvesting, data aggregating or indexing of the Service. All acts and omissions of Users shall be deemed to be those of Retailer, and Retailer shall be responsible therefor. Retailer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Retailer and Users. Retailer shall notify Cleever immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, Cleever reserves the right to suspend Retailer’s or any User’s access to the Service if Cleever reasonably believes that Retailer or such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Retailer prompt written notice of such suspension).
1.8 Retailer Cooperation
- reasonably cooperate with Cleever in all matters relating to the Service;
- respond promptly to any Cleever request to provide information, approvals, authorizations or decisions that are reasonably necessary for Cleever to provide the Service in accordance with this Agreement; and
- provide such Retailer materials or information as Cleever may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
1.9 Support and Related Services
Cleever will provide Retailer with telephone and/or email support in connection with Retailer’s use of the Service during Cleever’s regular business hours or as set forth on the Sales Order. Cleever is not responsible to provide any support for any issues resulting in problems, errors or inquiries resulting from Retailer’s systems and hardware.
2. CLEEVER Technology
In connection with providing the Service, Cleever and its licensors shall operate and support the hosted environment used by Cleever to provide the Service, including the Cleever Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Cleever. As used herein, “Cleever Technology” means all of Cleever’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Retailer by Cleever in providing the Service.
Retailer acknowledges and agrees that as between Cleever and Retailer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Retailer Data) and other content on or made available through the Service, other than Retailer Data), the Cleever Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Cleever or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Cleever Technology other than a limited right to use the Service in accordance with this Agreement. Cleever acknowledges and agrees that as between Retailer and Cleever, all right, title and interest in and to the Retailer Data are and shall remain owned by Retailer or its licensors, and this Agreement in no way conveys any right, title or interest in the Retailer Data other than a limited right to use the Retailer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Retailer under any trademarks, service marks, trade names or logos. Retailer shall not remove any Cleever trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service. Cleever acknowledges and agrees that as between Retailer and Cleever, all right, title and interest in and to the Retailer Data are and shall remain owned by Retailer or its licensors, and this Agreement in no way conveys any right, title or interest in the Retailer Data other than a limited right to use the Retailer Data in accordance with the terms and conditions set forth and agreed to herein.
4. Fees; Payments; Taxes
In consideration of the provision of the Service, Retailer shall pay Cleever the applicable fees in the amounts and the manner set forth on Sales Order.
Cleever reserves the right to increase its fees at any time on 60 days’ notice to Retailer. If Retailer objects to the fee increase, Retailer may terminate the Service by written notice during such 60-day period. If Retailer does not exercise its right of termination during such period, Retailer will be deemed to have accepted the increased fees.
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Retailer’s and its Users’ access to the Service. Retailer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Cleever’s income), which may be invoiced by Cleever from time-to-time.
4.4 Late payments
Retailer shall pay interest on all late payments at the lesser of:
- 1.5% per month or
- the highest rate permissible under applicable law, calculated daily and compounded monthly. Retailer shall reimburse Cleever for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Retailer hereunder.
5. Term; Termination
5.1 Term, Termination and Automatic Renewal
The term of this Agreement shall commence upon Retailer’s subscription to the Service as detailed on the Sales Order and, unless earlier terminated as set forth herein, shall continue for the period of the initial subscription selected by the Retailer (the “Initial Term”). Cleever reserves the right to terminate this Agreement at any time upon written notice to the Retailer and shall repay to Retailer any pro-rated portion of the fees paid to it in connection with the Service that the Retailer would have received but for Cleever’s cancellation. In the event that the Agreement is not terminated as set forth herein it shall continue to automatically renew for the length of the Initial Term (a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term”, and the Subscription Terms are referred to collectively as the “Term.”
5.2 Termination for Breach
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
5.3 Effects of Termination; Survival
Upon any termination of this Agreement:
- all rights granted to Retailer hereunder shall terminate and Cleever shall no longer provide access to the Service to Retailer, and
- Retailer shall cease and cause its Users to cease using the Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3 through 11.
6. Retailer Data
6.1 Data Generally
All data and information which the Retailer inputs into the Service (the “Retailer Data”) is stored in a private and secure fashion, and will not be used by Cleever except as permitted herein. Retailer hereby grants to Cleever a limited, non-exclusive, royalty-free right and license to use, reproduce, manipulate, and display the Retailer Data:
- during the Term solely in connection with providing the Service to Retailer,
- during and after the Term to improve, develop and market the Service, provided that Cleever may only use anonymized and aggregated Retailer Data to improve, develop and market the Service. Without limiting the above, Cleever may analyse Retailer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Retailer or any individual, household, user, browser, or device and Cleever may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Retailer shall be solely responsible for providing, updating, uploading and maintaining all Retailer Data. The content of Retailer Data shall be Retailer’s sole responsibility. Cleever shall operate the Service in a manner that provides reasonable information security for Retailer Data, using commercially reasonable data backup, security, and recovery protections.
6.2 Additional Retailer Responsibilities
Retailer is solely responsible for all Retailer Data. Cleever does not guarantee the accuracy, integrity or quality of Retailer Data. Retailer shall not: (a) upload or otherwise make available to Cleever any Retailer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Cleever any Retailer Data that Retailer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Retailer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Cleever any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Service; (f) upload or otherwise make available to Cleever any Retailer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data.
7. Representations and Warranties; Disclaimer
7.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that:
- if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization;
- such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement;
- the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.
7.2 Cleever Limited Warranty
Cleever further represents and warrants that:
- it will provide the Service in a competent and workmanlike manner; and
- it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Retailer under this Agreement. Cleever does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. Cleever makes no warranty regarding features or services provided by any third parties. Cleever retains the right to modify its services and the Cleever Technology in its sole discretion. Retailer’s sole remedy for Cleever’s breach of the warranty in this paragraph shall be that Cleever shall remedy the applicable error, or if Cleever is unable to do so in a timely manner, refund to Retailer actual damages up to a limit of the fees paid during the six (6) month period leading up to when the breach of warranty occurred.
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.2 ABOVE, CLEEVER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET RETAILER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
7.4 Additional Disclaimer
RETAILER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES. ADDITIONALLY, CLEEVER USES THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”). CLEEVER MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. YOUR USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CLEEVER SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR. RETAILER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT CLEEVER IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR, AND THAT CLEEVER COULD NOT AFFORD TO PROVIDE THE SERVICE AT THE PRICES OFFERED IF IT WERE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
8. Limitations of Liability
8.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CLEEVER’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY RETAILER TO CLEEVER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM.
8.2 Disclaimer of Indirect Damages
EXCEPT FOR (A) RETAILER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) ITS INDEMNIFICATION OBLIGATIONS; AND (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.3 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT CLEEVER HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9.1 Cleever Indemnification
Cleever shall defend, indemnify and hold harmless Retailer and its directors, officers, and employees (“Retailer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9.2 Retailer Indemnification
Retailer shall defend, indemnify and hold harmless Cleever and its directors, officers, employees, agents and providers (“Cleever Indemnified Parties”) from and against any Claims to the extent based on any claim that the Retailer Data Infringes any third party intellectual property or proprietary right (excluding patents).
9.3 Indemnification Process
As conditions of the indemnification obligations in Sections 9.1-9.2 above:
- the applicable Retailer Indemnified Party or Cleever Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby),
- the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and
- the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
Cleever’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service (including any use not strictly in accordance with the documentation therefor, Cleever’s instructions, and this Agreement);
- any modification, alteration or conversion of the Service not created or approved in writing by Cleever;
- any combination of the Service with any computer, hardware, software or service not provided by Cleever; (d) Cleever’s compliance with specifications or other requirements of Retailer; or
- any third party data or Retailer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9.1 above, Cleever may, at its cost and sole discretion:
- obtain the right for Retailer to continue using the Service as contemplated herein;
- replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or
- to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Retailer any pre-paid fees for the Service associated with the then-current Subscription Term. Cleever’s obligations in this Section 9 shall be Cleever’s sole obligations, and Retailer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
“Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, source code, software, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that:
- is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party;
- is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality;
- is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or
- is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition:
- the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties;
- the Service and Cleever Technology shall be deemed Confidential Information of Cleever, regardless of whether or not they are labelled or identified, or would reasonably be considered confidential; and
- Retailer Data shall be deemed Confidential Information of Retailer.
10.2 General Obligations
Each Party agrees that it will during the Term and thereafter
- not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph);
- use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement;
- disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and
- protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit:
- a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or
- a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that
- Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto,
- Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and
- Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
Notwithstanding the above or anything to the contrary herein, to the extent that Retailer at any time provides Cleever with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Retailer, and Cleever shall be free to use, disclose and otherwise exploit in any manner, the Feedback for any purpose. All Feedback is provided by the Retailer AS-IS, with no warrantee or representation of any kind.
11.1 Compliance with Laws
Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
Retailer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of Cleever. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, Cleever may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11.3 Entire Agreement; Amendment
Cleever may give any notices issued in connection with this Agreement by email to Retailer at the email address given by Retailer when creating its account, and such notices shall be effective upon confirmation of transmission to Retailer.
11.5 Force Majeure
Cleever shall not be liable or responsible to Retailer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Cleever, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
Cleever shall have the right to use Retailer’s name and logo on client lists published on Cleever’s website and in marketing materials. Cleever may announce the relationship hereunder in a press release provided that Cleever obtains Retailer’s prior approval of the wording of the release (not unreasonably withheld).
11.7 Choice of Law
The Agreement and the Terms of Cleever Membership shall be governed and construed in accordance with English Law.
11.8 Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
11.12 Heading; Interpreation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.