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1.1. This agreement (the "Terms") is made, depending on whether you are signing up for the Service (as defined below) as an individual or on behalf of an entity that you represent, between (1) the individual or company stated on the registration form for the Service (the "Registration Form") and (2) Breakout Software Limited, located at Postbox 02, Scottow Enterprise Park, Lamas Road, Badersfield, Norfolk, NR10 5FB, United Kingdom ("Breakout"). Reference to "you" or "your" are to the individual or company described on the Registration Form. If you are signing up on behalf of a corporate entity, you warrant and represent that you have legal authority to enter into these Terms on behalf of the entity that you represent and in doing so will bind the entity you represent.
1.2. Your use of the service described and made available at www.clulio.com as updated from time to time (the "Service") is governed by these Terms.
1.3. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that Breakout will treat your use of the Service as acceptance of the Terms from that point onwards.
1.4. You may not use the Service if you are a person barred from receiving the Service under the laws of England or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 18, as the Service is not intended for those aged under 18.
2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Breakout immediately.
2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You agree not to use the Service in the design, development, production, or use of military equipment or weaponry.
2.3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by Breakout in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with Breakout, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3.1. The Service permits you to use software and web applications with real-time functionality and to push content to and from users of that software ("End Users").
3.2. You agree to comply with the Breakout Acceptable Use Policies included available at https://www.clulio.com/acceptable_use/ (or such URL as Breakout may provide) (the "Acceptable Use Policies") which is incorporated herein by this reference and which may be updated from time to time.
3.3. You acknowledge that Breakout will collect and process Personal Data in connection with the use of the Service in accordance with these Terms and the privacy policy for the Service available at https://www.clulio.com/privacy (or such URL as Breakout may provide), which may be updated by Breakout from time to time and which is incorporated herein by reference (the "Privacy Policy").
4.1. For the purposes of this Section:
4.1.1. "Data Protection Laws " means the Data Protection Act 2018, the European Union's General Data Protection Regulation, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data as amended, re-enacted, replaced or superseded from time to time.
4.1.2. "Personal Data" has the meaning given in the Data Protection Laws.
4.2. Each party will comply with the Data Protection Laws, to the extent applicable.
4.3. For the purposes of these Terms, if and to the extent that Breakout processes any Personal Data on your behalf when performing your obligations, you shall be the data controller and Breakout shall be a data processor and in any such case:
4.3.1. Each party acknowledges that Breakout may process your IP addresses and those of your End Users for error logging and monitoring issues in providing the Service. Breakout may collect and store for a reasonable length of time the IP address of the browser or device of an End User that connects to the Service. Breakout may collect, use and store your IP addresses to track usage of the Service and to monitor potential issues and abuse of the Service. To the extent that any Content includes Personal Data, this may also be processed during the term of this agreement, solely for the purpose of us providing the Service to you.
4.3.2. Each party acknowledges that historical data both of the Customer and End User can be stored by Breakout. Breakout may store Personal Data collected or provided through use of the Service for a custom amount of time (including an indefinite amount of time), depending on the terms of your plan with us and your individual settings. Breakout customers store any Personal Data on End Users at their own risk and are responsible as a data controller for notifying End Users about the retention of their Personal Data as required under Data Protection Laws.
4.4. Breakout shall:
4.4.1. process the Personal Data only to the extent necessary for the purposes of performing its obligations under these Terms and otherwise in accordance with your documented instructions where agreed with Breakout in advance and in writing;
4.4.2. ensure that all persons authorised by Breakout to process the Personal Data are committed to confidentiality obligations which cover the processing;
4.4.3. have at all times during the term of this agreement appropriate technical and organisational measures to secure the Personal Data and protect the rights of the data subject, with particular regard to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, the Personal Data;
4.4.4. not engage another processor of the Personal Data without your prior consent, save for the payment processors, data storage and hosting service providers needed to provide the Services which are deemed to be approved by you for the purpose of these Terms and such sub-processors shall be required to comply with obligations substantially similar to those in this clause in respect of the Personal Data.
4.4.5. at your election, delete or return all Personal Data to you, and delete all existing copies at the end of this agreement, unless applicable law requires their retention;
4.4.6. without undue delay after becoming aware of a Personal Data security breach, notify you and provide reasonable assistance to you in dealing with the breach.
4.5. You shall:
4.5.1. provide clear and comprehensible written instructions to Breakout for the processing of Personal Data to be carried out under these Terms which shall be agreed with Breakout in writing before your use of the Service;
4.5.2. advise End Users when their Personal Data may be transferred outside the EEA, if appropriate, and that such jurisdictions may not have appropriate safeguards in place with respect to their Personal Data, and of the possible risks associated with such transfers;
4.5.3. protect the privacy and legal rights of the End Users of your account and functionality created or enabled by your account. You must provide legally adequate privacy notice and protection for those End Users in accordance with and reflecting the Privacy Policy.
4.5.4. ensure that you have all the necessary licences, permissions and consents from data subjects (as defined in the Data Protection Laws) so that Breakout may lawfully use, process and transfer the Personal Data in accordance with this agreement on your behalf; and
4.5.5. indemnify on demand, defend and hold Breakout harmless against all loss, liability, damages, costs, fees, claims and expenses which you may incur or suffer by reason of any breach of this Section 4 by you.
5.1. Subject to the Terms, the Service is provided to you without charge up to certain quotas. These quotas will be known as the "Fee Threshold" and can be found here.
5.2. Once you reach the Fee Threshold you will no longer be able to use the Service until you have upgraded to a paid-for plan. The plans available can be viewed here, as updated from time to time.
5.3. Once you have upgraded to a paid-for plan, a bill will be issued to your online account for all charges due under your plan, provided they are within the Fee Threshold for the applicable plan. For use of the Service in excess of any portion of the Fee Threshold, you shall be responsible for all charges up to the amount set in your online account, and shall pay all charges in British Pounds Sterling or in such other currency as agreed to in writing by the parties by electronic payment via credit or debit card.
5.4. Breakout may change its fees and payment policies for the Service with ninety (90) days' prior notice. However, Breakout may change the Fee Threshold limits at its discretion. Changes to the fees or payment policies will be posted on the quotas page or at https://www.clulio.com/terms (or such other URL Breakout may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5.5. You may not register multiple companies to simulate or act as a single company or otherwise access the Service in a manner intended to avoid incurring fees.
6.1. You understand that all data, information and content, including without limitation data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images, which are uploaded or posted by you, persons authorised by you, or End Users for transmission through the Service ("Content") is the sole responsibility of the person from which such Content originated.
6.2. Breakout reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Acceptable Use Policies, including pursuant to a takedown request from Breakout. In the event that you elect not to comply with a request from Breakout to take down certain Content, Breakout reserves the right to cancel your use of the Service.
6.3. In the event that you become aware of any violation of the Acceptable Use Policies by an End User of the Software, you shall immediately terminate such End User's account. Breakout reserves the right to terminate End User Breakout accounts or disable your access to the Service in response to a violation or suspected violation of the Acceptable Use Policies.
6.4. You agree that you are solely responsible for (and that Breakout has no responsibility to you or to any third party for) any Content and for your use of the Service (including any loss or damage which Breakout may suffer) by doing so.
6.5. You understand and agree that transmissions over the internet are never completely secure. You agree that Breakout has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your data and any Content.
7.1. You acknowledge and agree that Breakout (or Breakout's licensors) own all legal right, title and interest in and to the Service and in any software made available as part of the Service ("Software"), including any intellectual property rights which subsist in the Service and Software (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7.2. Unless you have agreed otherwise in writing with Breakout, nothing in the Terms gives you a right to use any of Breakout's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
7.3. Except as provided in Section 9, Breakout acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Breakout, you agree that you are responsible for protecting and enforcing those rights and that Breakout has no obligation to do so on your behalf.
8.1. Breakout gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Breakout, in the manner permitted by the Terms.
8.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Breakout, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service and Software; (c) use the Service to in a way that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious or illegal content to or through the Service.
8.3. You may not assign (or grant a sublicense of) your rights to use Breakout, the Service or Software, grant a security interest in or over your rights to use Breakout, the Service or Software, or otherwise transfer any part of your rights to use Breakout, the Service or Software.
8.4. Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Breakout for the use of the components of the Service released under an open source license.
9.1. Breakout claims no ownership or control over any Content that you or your End Users upload to or process with the Service or Software. You retain copyright and any other rights you already hold in the Content, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Service you give Breakout a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Breakout to provide you with the Service. Furthermore, by creating an account through use of the Service, you give Breakout a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such account data for the sole purpose of enabling Breakout to provide you with the Service.
9.2. You agree that Breakout, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Website listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
10.1. The Software which you use may automatically download and install updates from time to time from Breakout. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive and install such updates (and permit Breakout to deliver these to you) as part of your use of the Service.
11.1. You acknowledge and agree that the form and nature of the Service which Breakout provides may change from time to time without prior notice to you, subject to the terms in Sections 5.3 and 11.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service (including previous versions of the Service); examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
11.2. If Breakout in its discretion chooses to cease providing the current version of the Service whether through discontinuation of the Service or by upgrading the Service to a newer version, the current version of the Service will be deprecated and become the "Deprecated Version of the Service". Breakout will issue an announcement if the current version of the Service will be deprecated. For a period of 90 days after an announcement (the "Deprecation Period"), Breakout may continue to operate the Deprecated Version of the Service and to respond to problems with the Deprecated Version of the Service deemed by Breakout in its discretion to be critical, if it is commercially viable to do so, but shall be under no obligation in this regard. During the Deprecation Period, no new features will be added to the Deprecated Version of the Service.
Breakout may in its discretion cease providing all or any part of the Service or any Deprecated Version of the Service immediately without any notice at any time and for any reason.
11.3. You may discontinue your use of the Service at any time. Breakout may, at any time, terminate your use of the Service if (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or (B) Breakout is required to do so by law (for example, due to a change to the law governing the provision of the Service); or (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires Breakout to change the way Breakout provides the data or services through the Service; or (D) providing the Service could create a substantial economic burden as determined by Breakout in its reasonable good faith judgment; or (E) providing the Service could create a security risk or material technical burden as determined by Breakout in its reasonable good faith judgment.
11.4. Upon any termination of the Service under Sections 5 or 11 , these Terms will also terminate, but Sections 7.1, 9, 12, 13, 14, and 17 shall continue to be effective after these Terms are terminated.
12.1. Nothing in these terms, including sections 12 and 13, Shall exclude or limit Breakout's warranty or liability for losses which may not be lawfully excluded or limited by applicable law.
12.2. You expressly understand and agree that your use of the service is at your sole risk and that the service is provided "as is" and "as available."
12.3. Breakout, its subsidiaries and affiliates, and its licensors make no express warranties and, to the extent you use the service in the course of a business, disclaim all implied warranties regarding the service including implied warranties of satisfactory quality, merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, Breakout, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that: (a) your use of the service will meet your requirements, (b) your use of the service will be uninterrupted, timely, secure or free from error, and (c) usage data provided through the service will be accurate.
13.1. Subject to section 12.1 above, you expressly understand and agree that Breakout, its subsidiaries and affiliates, and its licensors shall not be liable to you under or in connection with this agreement and whether in contract, tort (including negligence), for breach of statutory duty or otherwise, for any indirect, incidental, special consequential or exemplary damages, loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss, which may be incurred by you, however caused and under any theory of liability.
13.2. The limitations on Breakout's liability to you in section 13.1 above shall apply regardless of whether Breakout has been advised of or should have been aware of the possibility of any such losses arising.
13.3. If you are using the service in the course of a business, Breakout's total aggregate liability to you under or in connection with this agreement or the service and whether in contract, tort (including negligence), for breach of statutory duty or otherwise, shall in no event exceed the amount of fees paid by you to Breakout in respect of the service in the 12 months immediately preceding the date on which liability first arose.
13.4. If you are using the service other than in the course of a business, Breakout's total aggregate liability to you under or in connection with this agreement or the service and whether in contract, tort (including negligence), for breach of statutory duty or otherwise, shall in no event exceed the greater of (1) the actual amount of direct and reasonably foreseeable losses that you have suffered as a result of the breach after you have taken all reasonable steps to mitigate your losses; and (2) the amount of fees paid by you to Breakout in respect of the service in the 12 months immediately preceding the date on which liability first arose.
14.1. You agree to hold harmless and indemnify Breakout, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "Breakout and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your use of the Service or Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Breakout will provide you with written notice of such claim, suit or action.
15.1. The Service may include hyperlinks to other websites or content or resources or email content. Breakout may have no control over any websites or resources which are provided by companies or persons other than Breakout.
15.2. You acknowledge and agree that Breakout is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
15.3. You acknowledge and agree that Breakout is not liable for any loss or damage which may be incurred by you or users of the Service or Software as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
16.1. Breakout may make changes to the Terms from time to time. When these changes are made, Breakout will make a new copy of the Terms available at https://www.clulio.com/terms.
16.2. You understand and agree that if you use the Service after the date on which the Terms have changed, Breakout will treat your use as acceptance of the updated Terms.
17.1. The Terms constitute the whole legal agreement between you and Breakout and govern your use of the Service (but excluding any services which Breakout may provide to you under a separate written agreement), and completely replace any prior agreements between you and Breakout in relation to the Service.
17.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
17.3. If Breakout provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
17.4. You agree that Breakout may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
17.5. You agree that if Breakout does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Breakout has the benefit of under any applicable law), this will not be taken to be a formal waiver of Breakout's rights and that those rights or remedies will still be available to Breakout.
17.6. Breakout shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
17.7. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Section shall not affect the validity and enforceability of the rest of the terms.
17.8. The Terms, and your relationship with Breakout under the Terms, shall be governed by the laws of England without regard to its conflict of laws provisions. You and Breakout agree to submit to the exclusive jurisdiction of the courts located within the city of London, UK to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Breakout shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
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