Last updated: 13th August 2022
These terms and conditions (the “Product Terms”) are made and entered into on the Effective Date by execution of a sign up (”Sign Up”) to the cellLoop platform, or by using cellLoop’s services or software, (the “Agreement”) by and between Kyndling Limited, a company incorporated in England and Wales under company number 12115079 and having its registered offices at 2 Sutherland Road, Flat 7, London, W13 0DT, United Kingdom (“cellLoop”) and the entity referred to as the “Customer” at Sign Up or completion of a Sales Order, whichever happens first (the “Customer”).
If you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent to cellLoop that you have the legal authority to bind the Customer to this Agreement. If you do not have authority or if the Customer does not agree with the terms to this Agreement, then you may not indicate acceptance of this Agreement, and neither you nor Customer may use or access any of cellLoop’s service offerings or other services.
cellLoop provides video and action tracking softare for Microsoft Excel and Google Sheets users. The Customer wishes to start with a free and, at the Customers discretion, subsequently paid subscription-based license to access and use the software platform and tools via one or more “Sales Orders” under and subject to this Agreement.
If you do not agree to these Product Terms, then do NOT use the cellLoop service.
1.1 Provision of Services. cellLoop shall make the Services available to the Customer pursuant to this Agreement and any applicable Sales Order(s) during the Term or Free Trial, solely for the Customer’s own internal business purposes. Users within the Customer’s paid subscription or individual Free Trial Users will gain access to cellLoop Technology which provides video and action tracking software in Microsoft Excel and Google Sheets.
1.2 Use of Services. The Customer’s use of the Services shall be limited to the number of Users purchased by the Customer in a Sales Order for use during the Term, or restricted services by way of Free Trial. At sign up, the Customer is provided with a free, limited, trial of the services. Any further increases in usage and licenses are provided via a Sales Order. The Customer may increase their committed volume of Users by Sales Order. The Customer may increase or decrease the volume of Users at any time, unless agreed otherwise.
2.1 Fees. The Customer shall pay to cellLoop the Fees set forth in the applicable Sales Order in accordance with this clause 2. Except as otherwise specified herein or in any Sales Order, all payment obligations are non-cancelable, and Fees paid are non-refundable.
2.2 Invoicing and Payment. Unless otherwise set forth in an Sales Order, cellLoop will invoice the Customer for the applicable Fees monthly in advance during the Term with the first invoice issued on or after Effective Date. The Customer shall pay invoices in full and without deduction by electronic money transfer to the account details provided in each invoice within fourteen (14) days of the date of the invoice in the currency specified in the Sales Order. Late payment of Fees may be subject to interest which shall accrue on such overdue amounts at the higher of (i) an annual rate equal to 4% or (ii) the maximum interest rate allowed under applicable law.
2.3 Taxes. All amounts and Fees stated or referred to in the Agreement are and are exclusive of all Taxes. The Customer shall be solely responsible for paying all applicable Taxes relating to the Agreement and the use or access to the Services and Support Services, if applicable.
2.4 Suspension of Services. If cellLoop has not received payment for any invoices which are not the subject of a bona fide dispute by the due dates and without prejudice to any other rights and remedies of cellLoop, cellLoop reserves the right to suspend the provision of Services to all user licences under its control. cellLoop shall be under no obligation to provide any or all of the Services and/or Support Services while the invoice(s) concerned remain unpaid. For purpose of clarity, and avoidance of doubt, the Customer will continue to be charged for the Services, at cellLoop’s discretion, during any period of suspension.
3.1 cellLoop Obligations. cellLoop: (i) shall use commercially reasonable efforts to maintain the security and integrity of the Services and Customer Data; (ii) will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned or emergency maintenance and cellLoop will use reasonable endeavours to give Customer prior notice of such maintenance.
3.2 Customer Obligations. Customer is responsible for all activity that occurs within its account and for its Users’ compliance with this Agreement. The Customer shall: (i) comply with cellLoop’s reasonable instructions from time to time in relation to its implementation and use of the Services, as applicable; (ii) notify cellLoop promptly of any issues relating to the Services, as applicable, and promptly provide all necessary information and co-operation reasonably required by cellLoop to enable it to diagnose and remedy such issues; (iii) comply with all Applicable Laws; (iv) use all reasonable efforts to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify cellLoop; (v) be solely responsible for the accuracy, completeness, design, appropriateness, creation, maintenance, and updating thereof of all Customer Data in the use of the Services; and (vi) be responsible for obtaining (and maintaining) all required licenses and consents required for cellLoop to use and process Customer Data in the provision of the Services, including without limitation, all necessary consents, licenses, approvals and legal checks required.
4.1 Warranties. Each party represents and warrants that: (i) it has the requisite power and authority to execute, deliver and perform its obligations under the Agreement; and (ii) the Agreement has been duly authorised, executed and delivered by each party and constitutes valid and binding obligations of such party enforceable against such party according to its terms. cellLoop warrants that the Services will be provided with reasonable skill and care during the Term. The Customer warrants and represents to cellLoop that it has obtained and maintained all required licenses, authorisations and consents pursuant to clause 3.2(vi).
4.2 Remedies. If the Services do not conform with the warranties provided in clause 4.1, cellLoop will, at its expense, use commercially reasonable efforts to correct any such non-conformance within a reasonable period of time. This clause sets out the Customer's sole and exclusive remedy and cellLoop’s entire liability for breach of clause 4.1.
4.3 Disclaimers. The warranty provided in clause 4.1 shall not apply to the extent of any non-conformance which is (i) caused by Customer’s implementation or use of the Services contrary to cellLoop’s instructions or otherwise in breach of the Agreement; or (ii) modification or alteration of the Services by any party other than cellLoop or cellLoop's duly authorised contractors or agents. Notwithstanding the foregoing, cellLoop: (a) does not warrant that Customer's use of the Services will be uninterrupted or error-free; (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from Customer’s access to and use of the Services and/or third-party applications or the transfer of data over communications networks and facilities, including the Internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; (c) is not responsible for any Virus which was not detected by cellLoop using reasonable current commercial methods of detection or transmitted through any third-party services; (d) nor its suppliers or third-party service providers or software vendors, shall have any liability whatsoever for the accuracy, completeness, or timeliness of Customer Data, or for any decision made or action taken by Customer, any User, or any third party in reliance upon any Customer Data.
5.1 Data Processing. Each party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with the Applicable Data Protection Laws. The Customer is the data controller of the Customer Data and appoints cellLoop as the data processor to process the Customer Data for the purposes described in this Agreement.
5.2 DPA. The parties shall comply with the provisions of the data processing addendum (“DPA”) attached to this Agreement with respect to the processing of any personal data pursuant to this Agreement.
6.1 Access to Service. In exchange for payment of the Fees listed on the Sales Order or by way of a Free Trial, and subject to the terms of this Agreement and any applicable Sales Order or Free Trial, cellLoop grants Customer (a) a non-exclusive, royalty-free, non-transferable right, solely during the Term to access and use the Services solely for Customer’s internal business purposes.
6.2 Reservation of Rights. Except for the limited rights expressly granted to Customer hereunder, cellLoop reserves all rights, title and interest in and to the Services, the cellLoop Technology including all related Intellectual Property Rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
6.3 Restrictions. Customer shall not (i) modify, copy, display, republish or create derivative works based on the Service or the underlying software; (ii) modify, copy or create derivative works of the Services or cellLoop Technology; (iii) reverse engineer the Services or the underlying software; (iv) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (v) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in this Agreement), distribute or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by this Agreement; (vi) use the Services to send or store infringing, obscene, threatening, defamatory, or otherwise unlawful material; (vii) upload to the Services or use the Services to send or store Viruses or other harmful or malicious code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (iv) attempt to gain unauthorised access to the Services or its related systems or networks. cellLoop reserves the right, without liability or prejudice to its other rights to Customer, to (a) disable Customer's access to any such material that breaches the provisions of this clause, including, but not limited to installing a blocking access program; and (b) remove any such content where, in cellLoop’s sole and reasonable discretion, cellLoop suspects such content breaches the provisions of this clause; and/or (c) to terminate the Agreement for material breach in accordance with clause 7.2.
6.4 Customer Data. As between cellLoop and Customer, Customer retains ownership of all rights, title and interest in and to all Customer Data. For the duration of the Term, Customer grants cellLoop a non-exclusive, transferable, sublicensable, royalty-free license to use Customer Data solely to (i) provide the Services to Customer, (ii) make improvements to the Services for Customer’s use. cellLoop will not be held responsible in any way for any Intellectual Property Right infringement or violation, the violation of any other person’s rights or the violation of any laws, arising or relating to such Customer Data. cellLoop shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, (except those third parties sub-contracted by cellLoop to perform services related to Customer Data maintenance and back-up) unless solely caused by cellLoop’ negligence or wilful misconduct.
6.5 Aggregated Anonymous Data. cellLoop may aggregate the metadata and usage data of Customer or User collected or otherwise made available through the Services so that the results are non-personally identifiable with respect to Customer or User (“Aggregated Anonymous Data”). The Aggregated Anonymous Data will be deemed cellLoop Technology, and Customer acknowledges that cellLoop may use the Aggregated Anonymous Data, both during and after the Term, (i) for its own internal, statistical analysis, (ii) to develop and improve the Services, and (iii) to create and distribute reports and other materials regarding use of the Services. For purposes of clarity, nothing in this clause 6.5 gives cellLoop the right (or ability) to publicly identify Customer as the source of any Aggregated Anonymous Data.
6.6 Intellectual Property Rights Ownership, Use. cellLoop and its licensors alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to all of the cellLoop’s Technology made available to Customer by cellLoop in providing the Services and the cellLoop Technology. This Agreement does not convey to Customer any rights of ownership in or related to the Services, the cellLoop Technology or the Intellectual Property Rights owned by cellLoop and its suppliers. Customer may be asked to provide suggestions, ideas, recommendations, bug fixes, corrections, or other feedback (“Feedback”) regarding the Services, though Customer is under no obligation to provide Feedback. Customer agrees that if Customer provides Feedback, cellLoop is free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of such Feedback without payment of compensation or any other obligation of any kind to Customer.
7.1 Term of Agreement. The Term shall, unless otherwise terminated as provided in this clause 7, commence on the Effective Date and shall continue for the Initial Term. Thereafter, the Agreement shall automatically renew for successive periods described on the Sales Order (each a “Renewal Term”). cellLoop may increase the Fees due under Sales Orders for the applicable Renewal Term.
7.2 Termination for Convenience. A Party may terminate this Agreement at any time for Convenience, whether in Free Trial, or paid Subscription.
7.3 Effect of Termination. On termination or expiration of the Agreement for any reason (i) Customer’s rights of use granted under the Agreement and relevant Sales Orders(s) shall immediately terminated and Customer shall immediately cease the use of the Services subscribed to under the Agreement; (ii) Customer shall promptly pay all monies due or to become due under the Agreement through the effective date of termination and for the remainder of the then current Initial Term or Renewal Term as applicable; and (iii) the following provisions shall survive any termination or expiration of this Agreement: clauses 5, 6.5, 6.6, 7.3, 8, 10, 11, 12.
8.1 Definition of Confidential Information. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Confidentiality. Each party shall (i) hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement; and (ii) take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. Customer acknowledges that details of the Services and cellLoop Data constitute cellLoop's Confidential Information. Customer Data is deemed the Confidential Information of Customer.
8.3 Confidentiality Period. The obligations of confidentiality under this clause 8 shall survive any expiration or termination of the Agreement for a period of 2 years from the date of termination, except for any information which is deemed a trade secret of a party in respect of which the obligations of confidentiality shall continue for as long as such information remains a trade secret.
9.1 cellLoop Indemnification. Except to the extent related to Customer’s acts or omissions, cellLoop will defend Customer, its officers, directors, employees, against all third party damages, claims, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees) that Customer’s use of the Services in accordance with this Agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality. Promptly upon receiving notice of a Claim, Customer shall (a) give cellLoop prompt written notice of the Claim; (b) give cellLoop sole control of the defense and settlement of the Claim (provided that cellLoop may not settle or defend any claim unless it unconditionally releases Customer of all liability); and (c) provide to cellLoop, at cellLoop’s cost, all reasonable assistance in the defense or settlement of such Claim. If the Service are held or likely to be held infringing, cellLoop shall have the option, at its sole liability and expense, to (i) replace or modify the Services as appropriate, (ii) obtain a license for Customer to continue using the Services, (iii) replace the Service with a functionally equivalent service; or (iv) terminate the applicable Services and provide a pro-rata refund for any pre-paid but unused Fees of the Term immediately following the effective date of termination. This Section 6.1 states cellLoop's entire liability and Customer's exclusive remedy for any claim of intellectual property infringement.
9.2 Customer Indemnification. Except to the extent related to cellLoop’s acts or omissions, Customer will defend cellLoop, its officers, directors, employees, against all third party damages, claims, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (i) Customer’s use of the Services in violation of the Agreement; and/or (ii) Customer Data.
10.1 Limitation of Liability. Except with respect to amounts owed by Customer to cellLoop hereunder and subject to clause 10.2 and 10.3, the aggregate liability of each party for or in respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence or otherwise)) under or in connection with the Agreement shall be limited to the total amount of Fees paid by Customer to cellLoop in the 12 month period immediately preceding the date on which the claim arose.
10.2 Exclusions at Law. The exclusions in this clause 10 shall apply to the fullest extent permissible at law but neither party excludes liability for (i) death or personal injury caused by its negligence or that of its officers, employees, contractors or agents; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be excluded by law.
10.3 Exclusion of Consequential and Related Damages. To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising from the Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages. The parties acknowledge that the amounts payable hereunder are based in part on these limitations and further agree that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
10.4 cellLoop Exclusions. The Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. cellLoop will not be liable to the Customer (i) for any damage caused by errors or omissions in any information, data or instructions provided to cellLoop by the Customer in connection with the Services or any actions taken by cellLoop at the Customer's direction; (ii) for any third party products or services accessed and/or used by the Customer through the Services (excluding those third parties subcontracted by cellLoop); (iii) where any failure to provide the Services is caused by a network, hardware or software fault in equipment which is not under the control of cellLoop; (iv) for any act or omission of the Customer; (v) for use of the Services in breach of the Agreement; (vi) for any unauthorised access to the Services including a malicious security breach; (vii) for loss or damage caused by the Customer’s delay or failure to timely provide any required information or co-operation or to fulfil its obligations under the Agreement; and (viii) for death, injury or physical harm caused by products or services supplied by third parties via the cellLoop platform.
11.1 cellLoop Right to Amend: cellLoop has the right to revise and amend the Product Terms from time to time.
11.2 Enforcement of Changes: The Customer will be subject to the Product Terms in force at the time that it makes use of the cellLoop Service, or if cellLoop notifies the Customer of changes to the Product Terms and it continues to use the cellLoop Service the Customer will be subject to those changes.
11.3 Notification of Variation: cellLoop will use reasonable endeavours to notify the Customer of any material changes to the Product Terms by email or by the placement of a notify on the cellLoop Service.
11.4 Right to Terminate: The Customer may termininate the Agreement immediately if it has been materially and adversely affected by a change in the Produce Terms and Conditions.
11.1 Marketing. An authorised representative of the Customer may agree separately by email, cellLoop to publish the Customer’s name and logo in its customer lists, and promotional, marketing and investment materials, in any media.
11.2 Entire Agreement. The Agreement together with its Sales Order(s) sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing the Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by the Customer in connection with the Agreement shall not be binding on cellLoop. In entering into the Agreement each party acknowledges and agrees that it has not relied on any representations made by the other. Any such representations are excluded. Nothing in this clause shall limit liability for any representations made fraudulently.
11.3 Governing Law and Jurisdiction. The Agreement and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
11.4 Third Party Rights. A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 (the "Act") to enforce, or to enjoy the benefit of, any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Act or that is expressly provided for under the Agreement.
11.5 Assignment. Neither Party may assign, delegate any part of this Agreement without the other Party’s prior written approval, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement without the other Party’s consent, in whole or in part, in cases of merger, acquisition, or divestiture, except to a direct competitor of the other Party and/or its Affiliate or to an Affiliate of such direct competitor.
11.6 Force Majeure. Except for the Customer’s payment obligations, neither Party shall be responsible for failure or delay of performance if caused by a Force Majeure Event. Each Party shall use commercially reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for more than 30 days, either Party may cancel unperformed Services upon written notice (which notice may be made via e-mail to the other Party). This section does not excuse either Party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or the Customer’s obligation to pay for the Service or Professional Services provided.
11.7 Notices. All notices to be given under the Agreement shall be given in English in writing to the Legal Department at the address stated at the beginning of the Agreement, or to such other address as shall be given by either Party to the other in writing. Any notice involving non-performance, termination, or renewal shall be hand-delivered or sent by e-mail or sent by recognised overnight courier or by certified mail, return receipt requested. Notices given by cellLoop regarding price changes, discount category changes, product discontinuance, and product changes may in addition be sent by e-mail the person(s) specified by the Customer from time to time. All other notices not referred to elsewhere in this clause 11.7 may be sent by (i) recognised overnight courier or (ii) by e-mail and confirmed by first class mail. All notices shall be deemed to have been given and received on the earlier of actual receipt or three (3) days from the date of postmark.
11.8 Severability. Should parts of the Agreement be or become invalid, this shall not affect the validity of the remaining provisions of the Agreement, which shall remain unaffected. The invalid provision shall be replaced by the parties with such term which comes as close as possible, in a legally permitted manner, to the commercial terms intended by the invalid provision.
11.9 Waiver. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. The Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The headings are for convenience and shall not be used to construe the Agreement.
The following definitions apply to the Agreement. Any capitalised terms not otherwise defined in the Agreement or its Schedules have the meanings set out below: