CLUEY TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) constitute an agreement (“Agreement”) between you (“you”, “your”, “user” or “Customer”) and Cluey Limited (“Cluey”, “us”, “we” or “our”) an Irish-registered company with its primary office located at 1-6 Haymarket, Dublin 7, Ireland for virtual point of sale, business management and marketing services and any related products or services including client standalone software, applications and updates (“Software”) together called the “Services”.

This Agreement governs the services, any assigned account (“Account”) and any related equipment (“Hardware”) that Cluey provides you in connection with the Services.

Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, either by phone or through the Cluey website (www.cluey.com) (referred to herein as, the “Site”); or (ii) through the use of your Account; or (iii) your use of the Site.

Additional terms are stated at the Site and are incorporated by reference. Updates to this Agreement and those terms will be effective 30 days after they are published on the Site; you may elect not to accept an update by cancelling your subscription to the Services.

1. ACCESS
This Agreement shall commence on the date we activate Services for your Account. There may be no charge for the first 30 days in which event it will constitute a free trial period. At the end of this trial period, if you wish to continue using the Services, you will need to pay for the Services (other than when you opt to use the free Services Plan as set out at the Site) where applicable by providing a valid credit card number or providing another form of payment. Your submission of your order on the Site or receipt of an email confirmation from Cluey signifies acceptance by Cluey of your order and the provision of your Account. If you do not want to continue using the Services once the 30 day trial has expired, you can cancel at any time prior to the expiration of the trial by sending an email to support@cluey.com. If you opt for Services Plan A (as detailed on the Site) you are permitted to use the Services without charge provided that the number of monthly transactions is less than 100 each month. Should the number of transactions exceed this number, we will contact you to advise you that should you wish to continue to use the Services you will either have to reduce the number of monthly transactions to less than 100 or be obliged to go to another Services Plan which will require you to commence paying to continue to receive the Services.
Subject to you purchasing the Services in accordance with these Terms and the restrictions set out in clause 7, we hereby grant you a non-exclusive, revocable, non sub-licenseable, non-transferable right to use, and to permit the Users (as defined below) to use the Services during the term of this Agreement solely for your internal business operations.
Unless agreed otherwise, you will be required to provide your own hardware and mobile devices and to download and install the Software. The Software is licensed to you subject to any terms and conditions presented when you downloaded it as well as those contained in this Agreement. If there is a conflict, this Agreement will prevail. You are licensed to use the Software only with the Services, and your licence is a non-exclusive, revocable, non sub-licenseable, non-transferable right to use the Software for the term of this Agreement. You may not remove any copyright notices and proprietary legends on all copies of the Software and the media on which it is delivered.

Access to the Services is limited to those of your employees, contractors and business partners who have been issued usernames and passwords or a PIN by you or by us (“Users”). Each User must have a personal, non-transferable password or PIN which they should keep confidential. User accounts should not be “shared” or used by more than one individual.

2. SERVICE UPDATES

We may update the Services from time to time and may add new or different features and functionality. Provided you are current with payment of all applicable fees, you will be granted access to the updated versions of features to which you have subscribed. Optional new features and functions may be subject to additional fees. We may also adjust or delete or downgrade certain features of the Services from time to time.

3. FEES AND PAYMENT

Fees

You are responsible for paying a monthly subscription fee as posted on the Site (“Subscription Fee”) for the specific plan you have chosen. You are responsible for payment of all taxes and duties in addition to these fees. Should you opt for email and phone technical support services, you will be charged fees for these services (“Support Fees”). Such Support Fees are posted on the Site. Cluey, may in addition, charge set up support fees and additional fees for optional features, add-ons, and other added products and services ordered by you. Such fees are posted on the Site. If you opt to have Hardware supplied, you agree to pay the charges for the Hardware, as set out on the Site (“Hardware”).

Cluey reserves the right to change its pricing and/or billing practices in its sole discretion. We reserve the right to suspend Services if a past due balance remains for over 15 days. Customers with past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or updating their credit or debit card or other payment method on file.

Billing and Payment

The Subscription Fee, Support Fees, Hardware costs, and any applicable set up fees will be billed in advance either annually or monthly, depending on which option you choose. Unless otherwise agreed to in writing, you are to pay for all charges by credit or debit card. Other methods of payments such as use of PayPal or direct debit can be agreed separately by the parties. You agree to advise us of any changes to your credit or debit card account details, such as account number, billing address, or expiration date changes. An invoice will be issued either annually or monthly, as appropriate and Cluey will continue invoicing either monthly or annually as appropriate, until this Agreement is terminated in accordance with clause 9. All Cluey invoices will be sent to you, or to a billing contact where such details are provided by you, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 3 days of the invoice date.
Late or Non-Payments. You shall be liable for all costs (including reasonable attorney fees) associated with Cluey collecting delinquent or dishonoured payments. Accounts will be terminated if we are not able to confirm an order by phone and do not receive any replies from the account holder. A credit or debit card authorization form will be required to reactivate such accounts.

4. HARDWARE

Title to Hardware shall not pass to you until you have paid the entire cost charged for the Hardware. We make no warranty of any kind regarding supplied Hardware, except that we shall repair or replace the Hardware with identical or similar hardware if the Hardware fails to operate in accordance with the manufacturer’s specifications and operation instructions within the warranty period. Such replacement shall be made as soon as practicable after you return the non-conforming Hardware.

5. PERSONAL DATA

If we process any personal data on your behalf when performing our obligations under this agreement, we both record our intention that you shall be the data controller and we shall be a data processor and in any such case: (i) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with this agreement; (ii) we shall process the personal data only in accordance with these Terms and our Privacy Policy at www.cluey.com and as set out below and any lawful instructions reasonably given by you from time to time; and (iii) each of us shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

We may use information you provide to us for the purposes of providing the Services and to communicate to you and the Users with respect to the Services, updates and enhancements as well as to provide notifications of other products and services offered by Cluey. We will not sell, rent or otherwise disclose any personal data to any third party, without your consent except in the following circumstances: (i) we do use and share non-personal, non-individual information in aggregate form with third parties for business purposes. This does not involve disclosing any personal data which can identify any individual user in any way; (ii) we may disclose personal data to any appropriate investigative third party if we believe that you or your Users are involved in any illegal or harmful conduct or if we are required to do so by law or if we believe that such action is necessary to (1) comply with the law or with legal process; (2) protect and defend our rights and property or that of our customers; (3) prevent fraud; (4) protect against abuse, misuse or unauthorized use of the Services; or (5) protect the personal safety or property of our customers or the public; (iii) we may employ other companies to provide services to us or to you, including for example, hosting providers. These companies have access to the personal information needed to perform their functions and not for any other purposes. They are bound by confidentiality agreements not to disclose any information for any other purpose; and (iv) we may transfer our databases, including personal data contained therein, to a third party who acquires all or substantially all of the assets or stock in the company or the Services whether by merger, acquisition, reorganization or otherwise.

You acknowledge that it is your responsibility to secure and protect your network and information under the PCI Data Security Standard (“PCI-DSS”) and that you are responsible for your own PCI-DSS compliance.

6. SUPPORT SERVICES

Cluey will make all reasonable efforts to ensure that the Services are available to you 24 hours per day via Internet access, other than for interruptions due to service maintenance and upgrades, system failure, system back-up and recovery, and for causes beyond Cluey’s control. If for any reason Cluey has to interrupt the Services for longer periods than Cluey would normally expect, Cluey will use reasonable endeavours to publish in advance details of such activity on the Site.

To use the Services, you must maintain Internet access at your own expense. Cluey is not responsible for and does not warrant the performance of any internet service or other provider or its services, and you agree that we have no liability to you for such performance or services.

Online technical support and hosting technical support will only be provided to you during the free trial and where you are up to date with all fees. Email and phone technical support will only be provided where you have paid all Support Fees. You must make all reasonable efforts to investigate and diagnose problems before contacting Cluey. If you still need technical help, please check the support provided online by Cluey on the Site or failing that email us at support@cluey.com.

You understand that Cluey uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, support tools, and related technology required to run the Service. Cluey is not responsible for the acts and omissions of these third party vendors. Accordingly, you understand that the technical processing and transmission of the Service, including your Data (as defined in clause 8 ) and content, involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

7. YOUR RESPONSIBILITIES

You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement. You agree not to use the Site, Software, Hardware, Services and your Account for any unlawful or abusive purpose or in any way which interferes with our ability to provide Services to our customers, or damages our property.

You may not use and you shall procure that the Users do not use, the Services to:
(a) upload, post, email, or otherwise transmit or make available:
(i) any content or material that you do not have a right to transmit or any material that infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party or which is otherwise unlawful, or objectionable material or message;
(ii) any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or which might otherwise interfere with or disrupt the Services;
(iii) any material which is obscene, offensive, hateful or inflammatory or which promotes sexually explicit material, violence, illegal activities, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age or which disclosure is in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence, or material which threatens to invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
(v) (iv) unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or harm us or third parties in any way.

We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our Site constitutes a violation of their intellectual property rights, or of their right to privacy. We will not be responsible, or liable to any third party, for the content or accuracy of any content posted by you or any other user of our Site. We have the right to remove any posting you make on our Site if, in our opinion, your post does not comply with these terms.

You may not and you shall procure that the Users do not:
(a) copy, modify or create derivative works of the Services or Software or portions thereof; or
(b) disclose the results of any quality, benchmark or performance testing of the Services to any third party without our prior written approval;
(c) work around any technical restrictions in the Services;
(d) allow access to, publicly perform or display the Services other than to your Users;
(e) attack our Site via a denial-of-service attack or a distributed denial-of service attack; or
(f) transfer your access to the Services or this agreement to any third party.

You are responsible for all activity occurring under your use and use by any and all Users of the Site, Services, Hardware and/or Account and you shall be liable and hold us harmless for your acts or omissions as well as those of Users and your sub-contractors and agents. You agree to indemnify Cluey against all claims, costs, damage and loss arising from your breach of any of these Terms or any obligation you may have to Cluey including (but not limited to) any costs relating to the recovery of any fees that are due but have not been paid by you.

You shall abide by all applicable national and foreign laws, treaties and regulations in connection with your use of the Site or Services, including those related to data privacy, international communications, employment law, intellectual property and the transmission of technical or personal data. If your Services or Accounts are fraudulently used, you agree to immediately notify us of such unauthorized use. We have the right to interrupt, restrict or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.

8. OWNERSHIP

The Site, Services and Software, and all content or material used therein are either owned by us or licensed to us and are protected by copyright and other intellectual property laws. All rights not expressly granted herein are reserved by us.

Title to, and all intellectual property rights in, the Data remain your property. However, your access to the Data is contingent on full payment of the Cluey of all fees when due. You grant Cluey a licence to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Services and for any other purpose related to provision of services to you. “Data” means any data entered by you or with your authority into the Site. You must maintain copies of all Data entered into the Service. Cluey adheres to its best practice policies and procedures to prevent data loss but does not make any guarantees that there will be no loss of Data. Cluey expressly excludes liability for any loss of Data no matter how caused.

As a result of the operation of the Site and Services, we may obtain general knowledge and know-how related to the Services and common errors (from your feedback or otherwise). During the term and after termination, we may use such general knowledge and know-how for the purposes of improving the Services.

9. TERMINATION

After the initial 30 day trial, you may terminate this Agreement at any time with thirty (30) days notice by sending an email to support@cluey.com. Cluey will not provide any refund for any prepaid periods.

This Agreement and your right to use the Services and Hardware shall terminate with immediate effect by notice in writing if you commit a remediable material breach (which shall include non-payment) or wilful and repeated non-material breaches and you fail to remedy the same within thirty (30) days of receipt from us of a notice identifying the breach(es) and requiring it to be rectified or on thirty (30) days written notice if you commit an irremediable material breach of this agreement. All outstanding fees are payable on termination.

Upon termination, you and your Users shall immediately cease use of the Services and Software (and you acknowledge that we may terminate your Account immediately). In this case, no refund of pre-paid fees will be provided by Cluey.

Unless your access to the Services has been terminated for non-payment or for breach by you of these Terms, we will maintain your Data for a period of not less than thirty (30) days and make it available to you to download in a format reasonably determined by us. If we terminate your access to the Services for non-payment or breach of these Terms, you should be aware that all your Data may be deleted permanently and may not be retrievable.

We are not obliged to maintain your Data for longer than three (3) months after you have stopped using the Services.

10. WARRANTIES

THE SITE, SERVICES, SOFTWARE AND HARDWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. WE DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. NO PERSON, OTHER THAN AN OFFICER OF OURS IS AUTHORISED TO INCUR WARRANTY OBLIGATIONS ON OUR BEHALF OR TO EXPAND OR MODIFY THE LIMITATIONS SET FORTH HEREIN.

Internet Delays. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

11. LIMITATION OF LIABILITY

In no event shall we be liable for any direct, indirect, special, incidental or consequential damages whatsoever arising out of the use of or inability to use the Site, Software, Services or Hardware, whether based on contract, tort or other legal theory, even if we have been advised of the possibility of such damages.
If we are held liable for any reason under this Agreement or in relation to the Site, Software, Services or Hardware in no event will our total aggregate liability exceed the Subscription Fees paid by you in respect of the Services for the previous twelve (12) months. If you are not satisfied with the Site, Software, Services or Hardware, your sole and exclusive remedy is to terminate this Agreement in accordance with Clause 9.

12. CONFIDENTIAL INFORMATION

“Confidential Information” means all documentation, technical information, software, business information, pricing of the Services, trade secrets or know how or other materials of a confidential nature and/or that are disclosed in confidence by either of us to the other during the term of this agreement including data you provide. We each agree to hold, by using the same degree of care that we each take for our own information of a similar nature, each other’s Confidential Information in confidence. You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute our Confidential Information. You agree that we may name you as a customer in a general context.

13. ENTIRE AGREEMENT

These Terms, the Cluey Privacy Policy and the terms of any other notices or instructions given to you under these Terms constitute the complete and entire agreement of the parties and supersede all previous communications, oral or written, and all other communications between us relating to the use of the Services. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.

14. GENERAL

If any provision of this Agreement is judged to be unenforceable, that provision shall be amended to the extent necessary to make it enforceable. Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Cluey must be sent to support@cluey.com or to any other email address notified by email to you by Cluey. Notices to you will be sent to the email address which you provided when setting up your access to the Service. You may not assign or transfer any rights to any other person without Cluey’s prior written consent.

15. APPLICABLE LAW

United States. If you are based in the United States, New York state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles.

Outside the United States. If you acquired the software in any other country, the laws of Ireland apply and the parties hereto submit to the exclusive jurisdiction of the courts located in Dublin.

The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Agreement.