Agreement

The Agreement is set out below

IMPORTANT NOTICE: Please read the full Agreement carefully as it is a legally binding agreement.

THE PERSON REGISTERING TO USE THE SERVICES ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. IF THEY ARE USING THE SERVICES ON BEHALF OF ANOTHER PERSON OR LEGAL ENTITY THEN, BY REGISTERING, THEY REPRESENT AND WARRANT THAT THEY HAVE FULL LEGAL AUTHORITY TO ACCEPT ON BEHALF OF AND BIND THAT PERSON OR LEGAL ENTITY TO THE TERMS.

AGREEMENT

1 DEFINITIONS

In this Agreement, the following terms shall have the following meanings:

"Intellectual Property Rights"
means patents, registered designs, registered trade and service marks, registered copyright and modifications to and applications for any of the foregoing and the right to apply for protection for such registered rights anywhere in the world and inventions, discoveries, copyright, database right, unregistered trade or service marks, brand names or know-how and any similar or equivalent rights whether capable of registration or not arising, applied for or granted under the laws of any country;
"Agreement"
means this agreement;
"Registration"
means the process of registering your details with us and setting up online login details;
"Subscription"
means you getting access to the Services for a given period of time and usage by the paying of fees to us (via a third party provider) excluding VAT and all other relevant taxes where applicable, as detailed by us from time to time;
"Services"
means one or more of a set of hosted tools and data storage that are provided to you on a Subscription basis. The particular set of tools is likely to change from time to time. The current set of tools is defined in Schedule 1. We use third parties to provide the Cloud facilities and appropriate details of those third party providers and the facilities they provide to us are given in the descriptions of the relevant tools on our website;
"Software"
means any or all of the software included in the Services;
"We", "Our" and the non-capitalised versions
means Cherry Safe Software Limited, a company registered in England with company number 9734753 and having its registered office at 33 Long Reach Road, Cambridge CB4 1UQ, United Kingdom;
"You", "Your" and the non-capitalised versions
means either (a) the person who registers, logs in and uses the Services for his own personal use; or (b) where the Registration, login and use is on behalf of an employer, another person, or legal entity, then such employer, other person or legal entity on whose behalf the Agreement has been entered.

2 HEADINGS

2.1

The headings to the clauses and Schedules of the Agreement are for convenience only and will not affect its construction or interpretation.

3 EVALUATION LICENSE

3.1

In return for the mutual rights and obligations set out in the Agreement we grant you the right to use the Services for a period of 10 days (or such other period as is specified during Registration or in the description of the relevant Service on our website) and for a defined Level of Use (see Clause 6.2) from when Registration is made by or on behalf of you ("Evaluation Period"). During the Evaluation Period you can decide whether or not the Services meet your requirements. The Evaluation Period and defined Level of Use may be extended by written agreement with us (“written” shall include an exchange of emails between you and us).

3.2

Before or upon expiry of the Evaluation Period:

3.2.1

If, in your sole opinion, the Services meet your requirements, and you wish to continue the Agreement, you shall pay us the Subscription and this Agreement shall then remain in full force and effect.

3.2.2

If you decide that the Services do not meet your requirements, or otherwise do not enter into a Subscription, then we shall have the right to terminate this Agreement. Any rights of yours to use the Services shall cease and we shall have the right to delete any of your data stored during the Evaluation Period.

3.3

During the Evaluation Period, you hereby agree that the Services are provided "AS IS" with no representation, guarantee or warranty of any kind as to their functionality, quality, performance, suitability or fitness for purpose. All other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded. For the avoidance of doubt, unless and until you pay the relevant Subscription for the Services: (a) Clauses 8.1, 8.3 and 12.2 of this Agreement shall not apply; and (b) Clause 12.1 shall apply except that the reference to Clause 12.2 is deleted.

4 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

4.1

You acknowledge that:

4.1.1

Except for your rights in your data stored by us or any third party provider during your use of the Services, all Intellectual Property Rights in or relating to the Services are owned by us or (where third party Software is included) their relevant owners;

4.1.2

except as expressly granted under this Agreement, you have no rights in the Services.

4.2

You hereby agree to refrain from any action which would diminish our Intellectual Property Rights in or relating to the Services or which would call them into question.

4.3

You agree not to remove or alter any trademarks, copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Services.

4.4

If you become aware of any infringement or suspected infringement of our Intellectual Property Rights in or relating to the Services by any third party, you shall notify us without delay. We and you shall consult together on an appropriate course of action but neither party shall be obliged to take any action in respect of any such infringement or suspected infringement.

5 YOUR USE OF THE SERVICES

5.1

In return for the mutual rights and obligations under the Agreement, and subject to the continuing payment of Subscriptions by you to us, we grant to you in perpetuity a limited, personal, non-exclusive, non-sub-licensable and non-transferable license to the Software within the Services and to use the Services.

5.1.1

Some Software used in the Services may be offered under an open-source license that we will make available to you. There may be provisions in the open-source license that expressly override some of the terms in this Agreement and in such instance the open-source license terms shall prevail in relation solely to that open-source content.

5.2

You must not misuse our Services. For example, do not interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. Without detracting from the generality of the above, you must not enter data that is intended to gain access to the internal working of the Services and neither must you use the Services in such a way that you affect the performance of the Services for other users (commonly called 'denial of service'). Further, you may use our Services only as permitted by law. We shall have the right to stop providing our Services to you immediately if you do not comply with our terms or policies or if we are investigating suspected misconduct. Although we take care over the security of the Services we provide, we shall not be responsible for the malicious acts of third parties. Similarly, we cannot control the actions of our third party providers and relevant information about them may be found in the description of the relevant Services on our website.

5.3

During Registration you will be asked to set up a password that will be unique to you.

5.3.1

You must ensure that such password is secure and you shall be liable for and indemnify us against any losses arising from any misuse of that password, including by a third party (other than our third party providers) who has acquired the password by any means.

5.3.2

Where you are an individual, the password you set up during Registration is personal to you and you may not transfer your Registration and use of the Services, on a temporary or permanent basis, without our prior written consent.

5.3.3

Where Registration is on behalf of an employer, another person, or legal entity, then the login details may be used by such other person or other staff of the employer or legal entity.

5.4

If you breach this clause 5, the Agreement or rights granted will automatically terminate in accordance with the provisions of clause 10.

6 SUBSCRIPTION

6.1

At the end of the Evaluation Period, your use of the Services and this Agreement will be dependent on you entering into a Subscription and paying Subscription fees on a regular basis for continued use.

6.2

Each payment of the Subscription shall give you use of the Services for a defined level of use (“Level of Use”) and a given period of time, both of which shall be made clear to you before you enter into the Subscription. We use a third party provider, Bright Market LLC (FastSpring) to handle payment of Subscription fees. While we have taken care in our choice of such third party, you should check their policies, including those for security and privacy, and ensure you are happy with them before proceeding. Relevant information for accessing their details is given on our website.

6.3

When the Subscription is coming to an end you will be expected to renew your Subscription. If you do not renew your Subscription then we shall have the right to terminate this Agreement, your access to the Services shall cease, and we shall have no obligation to retain any data related to the Services.

6.4

We shall have the right to increase the Subscription fees at any time by giving you notice of at least thirty days.

6.5

If you exceed the Level of Use during any Subscription then we shall have the right to stop your access to the relevant Services for the remainder of that Subscription. We may also give you the option to increase the Level of Use by paying an increased Subscription fee.

6.6

We shall have the right to stop providing all or part of the Services at any time by giving you notice. Normally this will be notice of at least thirty days and we shall refund you any unused part of the Subscription fee on a pro rata basis.

7 CONFIDENTIALITY

7.1

The structure, organisation, and internal workings of the Services are valuable trade secrets and proprietary confidential information of ours and our licensors. You agree not to provide or disclose any confidential information in the Services or derived from them to any third party.

7.2

The provisions of clause 7.1 will not apply to the extent that:

7.2.1

such information is in your possession free from any restriction as to its use or disclosure; or

7.2.2

you can demonstrate that such information is in the public domain (other than as a result of an unauthorised disclosure); or

7.2.3

such information is required to be disclosed by you by law.

7.3

No information to which clause 7.2.3 applies shall be disclosed to a third party unless and until you have:

7.3.1

given us, where practicable, five (5) U.K. business days written notice of such proposed disclosure;

7.3.2

consulted with us; and

7.3.3

agreed with us the content of the disclosure, provided that we shall not limit the disclosure in a manner which would prevent you from complying with a statutory or regulatory obligation or court order.

7.4

Similarly, we recognise that your data stored by us during your use of the Services contains valuable confidential information of yours. We agree not to disclose such confidential information to any third party. The provisions of clauses 7.2 and 7.3 above shall apply with the use of “we” and “you” reversed as necessary. In addition, any personal information we collect about you shall be treated in accordance with our Privacy Policy available at: https://cherrysafe.com/Home/PrivacyPolicy. Any of your personal information stored by third parties (such as the hosting organisation and payment organisation) during provision of the Services shall be subject to the privacy policies of those third parties.

8 WARRANTY AND SUPPORT

8.1

We hereby warrant:

8.1.1

that we own the Intellectual Property Rights in the Services and/or have the right to grant a license to you;

8.1.2

that in creating the Services, we have not knowingly infringed the intellectual property rights of third parties;

8.1.3

that the Services shall operate substantially in accordance with their description. However, you acknowledge that the Services and related materials are of such a complexity that there will be inherent defects and that therefore we can give no warranty that the Services are free from error or defect or that operation of the Services shall be uninterrupted. In particular, as the Services use a third party hosted service, that hosted service may become unavailable at any time through circumstances outside our control. The third party providers of the hosted service may provide additional information about such issues as continuity of service and loss of data in their literature. While we have taken care in our choice of our third party providers, you should check their policies, including those for security, privacy and loss or corruption of data, and ensure you are happy with them before proceeding. Relevant information for accessing their details is given on our website.

8.2

Other than as provided for in clause 8.1 above, we do not offer any warranty related to the Services, either express or implied, including but not limited to implied warranties of fitness for purpose or satisfactory quality. The Services have been developed as a set of standard services for use by a wide variety of users and so we are unable to warrant that the Services will meet any particular user's needs. You shall take full responsibility for ensuring that the Services are suitable for your intended purposes and to facilitate your checks of such suitability, we offer free Evaluation Licenses prior to you entering into a Subscription.

8.3

Support. In relation to and without prejudice to the generality of clause 8.1.3 above, we do provide limited support to users. The details of the support provided for the current set of Services are given on our websites under Schedule 1. You accept that, although we constantly seek to make the Services as useful as possible, the nature of such services is such that no guarantee can be provided that any particular problem will be solved. You accept that our Services are constantly evolving and that any particular part of the Service may be withdrawn by us by giving you notice and that new elements of the Services may be offered at any time.

9 LIMITATION AND EXCLUSION OF LIABILITY

9.1

We do not exclude our liability (if any) to you:

9.1.1

for personal injury or death resulting from our negligence;

9.1.2

for fraud; or

9.1.3

for any other matter for which liability cannot be excluded by law.

9.2

Subject to clause 9.1, we shall not be liable to you for any of the following types of loss or damage arising under or in relation to the Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise):

9.2.1

any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or

9.2.2

any loss, or corruption, of software or data; or

9.2.3

any loss of use of hardware, software or data; or

9.2.4

any indirect, special or consequential loss or damage whatsoever, even if we have been advised in advance of the possibility of such loss or damage.

9.3

Subject to clauses 9.1 and 9.2, our aggregate liability under the Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) shall be limited in all cases to the Subscription fees paid for the Services.

9.4

You acknowledge that the provisions of clauses 8, 9 and 12.1 are reasonable and reflected in the price which would be higher without those provisions, and you accept such risk. In the event that any of the limitations or exemptions in the Agreement shall be found to be void, clauses 8, 9 and 12.1 shall be construed in accordance with clause 15.

10 TERM AND TERMINATION

10.1

The Agreement shall commence upon your acceptance of its terms by your act of Registration and/or using the Services and shall continue in perpetuity until terminated in accordance with clauses 10.2 or 10.3, or otherwise in accordance with the Agreement.

10.2

The Agreement will terminate automatically if you fail to comply with any provision of the Agreement.

10.3

We may terminate the Agreement immediately and without notice if we reasonably suspect that you are using the Services for any purpose which contravenes the laws of England.

10.4

Upon termination of the Agreement under the terms of this Agreement we shall have the right to cancel your Registration and any Subscription and stop your access to the Services.

10.5

The termination of the Agreement howsoever arising shall not affect the rights, duties and liabilities of either party accrued prior to termination. Following termination, no obligations or liabilities remain with us.

10.6

On termination of the Agreement, and except as under clause 10.5 above, the provisions of clause 1 (Definitions), clause 2 (Headings), clause 4 (Ownership of Intellectual Property Rights), clause 6.4, clause 7 (Confidentiality), clause 8 (Warranty and Support), clause 9 (Limitation and Exclusion of Liability), clause 10 (Term and Termination), clause 11 (Monitoring of Your Use of the Services), clause 12 (Third Party Claims) and clauses 13 to 20 will remain in effect.

11 MONITORING OF YOUR USE OF THE SERVICES

11.1

You agree that we shall have the right to monitor your use of the Services to ensure that your use of the Services is within the Level of Use, and that your use is compliant with this Agreement. In carrying out such monitoring we shall ensure protection of your Confidential Information so long as your use is compliant with Clauses 5.2 and 5.3.2 of this Agreement. In order to improve the Services we also monitor selected user activities. Such monitoring is described in the description of the relevant Service on our website.

11.2

Where we reasonably conclude that your use is outside the Level of Use or your use is otherwise in breach of the Agreement, we shall at our sole choice provide you with written notice of such breach and either (i) if relevant, offer you an increased Level of Use on payment of an increased Subscription; or (ii) provide details of any remedial action required by you; or (iii) terminate the Agreement. Where we reasonably consider your use to infringe any laws then, in addition, we shall be free to inform the relevant authorities and to make all relevant data available to them.

12 THIRD PARTY CLAIMS

12.1

Except as in Clause 12.2 below, if a third party claims that the Services, as a result of your use of the Services, cause loss or damage whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, then, without prejudice to our overall liability to such third party, you shall indemnify us from any such loss or damage.

12.2

If any claim is brought against you alleging that your use of the intellectual property associated with the Services infringes the rights of any third party, you shall promptly notify us and supply full details of the claim. The two of us shall consult together on an appropriate course of action and shall seek to minimise the effect of any claim on the respective businesses. We shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim. We will pay any damages and costs awarded against you in connection with any claim subject to a maximum of the aggregate sum of Subscription fees paid to us by you under this Agreement. We shall have the right, at our sole choice, either: (i) to negotiate terms for continued use by you of the claimed infringing Services; or (ii) to amend the Services to make them non-infringing; or (iii) to terminate this Agreement with immediate effect and in such event, we shall refund to you the pro rata Subscription Fee.

13 GOVERNING LAW AND SETTLEMENT OF DISPUTES

13.1

The Agreement (and any dispute or claim relating to it, or its formation, existence, construction, performance, validity or termination) will be governed by and construed in accordance with the laws of England.

13.2

Any dispute between the parties that is not settled by negotiation shall be settled by binding arbitration under the rules of the International Chamber of Commerce before a single arbitrator. Where we bring the action, then the arbitration shall be in London, England. Where you bring the action then the arbitration shall be held in either London, England or Paris, France as agreed between the parties. All documentation and proceedings shall be in the English language. The arbitrator shall have the right to grant reasonable costs to the prevailing party.

13.3

The parties irrevocably agree that a judgment of the arbitrator referred to in this clause is conclusive and binding upon the relevant party or parties and may be enforced against them in the courts of any jurisdiction.

14 COMPLIANCE WITH APPLICABLE LAW

You acknowledge and agree that notwithstanding the fact that the Agreement is governed by the laws of England you may be subject to additional laws in other jurisdictions with respect to your use of the Services. You agree to comply with the laws of any jurisdiction that apply to the Services including without limitation any applicable export laws or regulations.

15 SEVERABILITY

If any provision or part of any provision in this Agreement shall be found by any court, body or authority of competent jurisdiction to be illegal, invalid or unenforceable for any reason then the parties shall meet promptly to discuss in good faith and agree an alternative provision or part provision that provides as closely as possible the same commercial effect as the original. If this happens then the remaining provisions or part provisions are unaffected.

16 NO WAIVER

No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.

17 NO THIRD PARTY RIGHTS

We and you do not intend that any of the Agreement terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it and all rights by virtue of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded.

18 ENTIRE AGREEMENT

The Agreement contains all the terms which the parties have agreed in relation to the subject matter of the Agreement and supersedes any prior written or oral agreements, representations (save for any fraudulent misrepresentation, fraud or concealment) or understandings between the parties in relation to such subject matter.

19 REVISIONS TO TERMS

We reserve the right to revise the terms of the Agreement by updating the Agreement on our website, or by notifying you by email. You are advised to check the website periodically for notices concerning such revisions. Your continued use of the Services shall be deemed to constitute acceptance of any revised terms.

20 NO ASSIGNMENT

This Agreement is personal to you. You may not assign the benefit or delegate the burden of the Agreement or hold the Agreement on trust for any other person without our prior written consent.

21 ACCEPTANCE OF AGREEMENT

You will be deemed to have accepted the terms of the Agreement by your act of Registration with us and/or using the Services.

Schedule 1: The current set of Services are given below, together with details of where the details of the Services are given on our website.