TERMS AND CONDITIONS
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.
Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Agreement" means a contract made under these Terms and Conditions between the Provider and the Customer;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Charges" means the amounts specified in the Plan selected by the Customer on first registration as at the Effective Date;
"Customer" means the person or entity identified as such in the Services Order Form;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
"Documentation" means the online documentation for the Hosted Services produced by the Provider and delivered or made available online by the Provider to the Customer;
"Effective Date" means following the Customer completing and submitting the online Registration Order Form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means Clear Software Hosted Services, which will be made available by the Provider to each Customer as a service via the internet in accordance with these Terms and Conditions;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Mobile App" means the mobile applications developed and published by Clear Software Ltd through the CLEAR brand that is made available by the Provider through the Google Play Store and the Apple App Store;
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the web site software and content, application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" Clear software Limited, a company incorporated in England and Wales (registration number 12187551) having its registered office at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ.
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Mozilla Firefox, Google Chrome or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time.
- Except to the extent expressly provided otherwise, in these Terms and Conditions:
- The Agreement shall come into force upon the Effective Date.
- The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 15.
- Unless the parties expressly agree otherwise in writing, each Registration Order Form shall create a distinct contract under these Terms and Conditi
- The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:
- the Hosted Services may only be used by those Users who have registered or have been registered by their Account Administrator;
- the Hosted Services may only be used by the named users identified in the Customer’s user list within the hosted system, providing that the Customer may change, add or remove a designated named user in accordance with the procedure to deregister and register active users; and
- if applicable based upon the licence type, the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Hosted System, providing that the Customer may add or remove concurrent user licences in accordance with the procedure to deregister and register active users.
Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any unauthorised person to access or use the Hosted Services;
- the Customer must not use the Hosted Services to provide services to third parties other than access services to their registered Clients for whom they are providing services;
- the Customer must not republish or redistribute any content or material from the Hosted Services;
- the Customer must not make any alteration to the Platform; and
- the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services.
- The Customer shall use reasonable endeavours, including reasonable security measures relating to Administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Administrator Account.
- The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
- The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Administrator Account comply with Schedule 1 (Acceptable Use Policy).
- The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue. Every effort will be made by the Provider to give to the Customer at least 10 days' written notice by email to the email address used and submitted on the online order form during registration that the amount is becoming due and of its intention to suspend the Hosted Services on this basis.
- The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
- The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
- The Provider may provide the Support Services to the Customer during the Term, but shall have no obligation to do so; any such Support Services shall be subject to this Clause 5.
- The Provider may make available to the Customer an email-based helpdesk.
- The Provider shall provide the Support Services with reasonable skill and care.
- The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
- The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
- The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue. Every effort will be made by the Provider to give to the Customer at least 10 days' written notice by email to the email address used and submitted on the online order form during registration that the amount is becoming due and of its intention to suspend the Hosted Services on this basis.
- The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
No assignment of Intellectual Property Rights
- Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
- The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
- All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes.
- The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.
- The Customer must pay the Charges to the Provider in advance of the period to which they relate where applicable.
If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
- suspend the service as detailed in Section 3.10 and charge the Customer interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
- Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
- The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
- The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of full name, Role job title, employees email addresses, mobile phone contact numbers, location information based upon the business mobile device location, Client information including Client Manager’s names, role, email address and phone contact numbers, Site information, Work Licences applicable to a person; and the Provider shall only process the Customer Personal Data for the following purposes: for the safe and effective performance of the system including time and location tracking and the delivery of effective and timely information to the Customer and their Clients as well as for Management Information for the improvements of the Customer’s work processes and work safety of their Employees, Sub-contractors and Clients. Back to back with Client site and business contact data – The Customer warrants and guarantees that they have the permission to do this and indemnifies the Provider against all actions.
- The Provider shall only process the Customer Personal Data during the Term and for not more than 120 days following the end of the Term, subject to the other provisions of this Clause 10.
- Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
- The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
- The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes for the Customer. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 10.
- As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties : None
- The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
- The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.11.
- The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
- The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 10 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.13, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
- The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
- The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 10. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.15, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.
- If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
- The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
- All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
Acknowledgements and warranty limitations
- The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
- The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
- The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
Limitations and exclusions of liability
Nothing in these Terms and Conditions will:
- limit or exclude any liability for death or personal injury resulting from negligence;
- limit or exclude any liability for fraud or fraudulent misrepresentation;
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions:
- are subject to Clause 13.1; and
- govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
- Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
- The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.
- The Provider will not be liable to the Customer in respect of any loss of revenue or income.
- The Provider will not be liable to the Customer in respect of any loss of use or production.
- The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
- The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
- The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed:
- the total amount paid and payable by the Customer to the Provider under the Agreement in the 6 month period preceding the commencement of the event or events.
- 50% of the total amount paid and payable by the Customer to the Provider under the Agreement in the 6 month period preceding the commencement of the event or events.
- Nothing in these Terms and Conditions will:
Force Majeure Event
- If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination.
- Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
if that other party is an individual:
- that other party dies;
- as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
- that other party is the subject of a bankruptcy petition or order.
- the other party:
Effects of termination
- Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.6, 3.7, 3.8, 3.9, 6, 9, 10.1, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 13, 16, 19 and 20.
- Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
Within 30 days following the termination of the Agreement for any reason:
- the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
- the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement except in the case where the payment of charges were for an Annual Subscription Service,
Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
- sent by the Customer to the Support email address via the Contact Us page on the Providers web site, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server;
- sent by email by the Provider to the relevant email address specified in the Registraton Order Form when the Customer first registered, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or
- Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
- Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement.
- No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
- If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- The Provider may vary the Agreement by giving to the Customer at least 30 days' written notice of the variation.
- The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
- The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
- Subject to Clause 13.1, a Registration Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Registration Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
- The Agreement shall be governed by and construed in accordance with English law.
- The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
- that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
- any subordinate legislation made under that statute or statutory provision.
- The Clause headings do not affect the interpretation of these Terms and Conditions.
- References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
- In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
- In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to: