Klipboard Terms of Service

Effective: 15th August 2018

The Platform (as defined below) is being made available by Klipboard Limited (“Klipboard”) to You on the condition that You agree to these terms and conditions (the “Agreement”). “You,” or “Your” refers to the person accessing or using the Platform, or, if the Platform is being used on behalf of an organisation, such as your employer, “You,” or “Your” means such organisation. If you are accessing the Platform on behalf of your organisation, You represent and warrant that You have the authority to do so and to bind such organisation to this Agreement. Violation of any of the terms below will result in the termination of this Agreement and Your access to the Platform. BY USING THE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND ARE AUTHORISED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE KLIPBOARD PLATFORM.

For more information on Klipboard and the Platform please visit www.klipboard.io.

Klipboard’s software is constantly evolving, and as such, it may change the terms of this Agreement from time to time. If a change to the terms occurs, then a new copy of this Agreement will be available (30) days before the new version becomes effective. Your use of the Platform is subject to the most current version of the Agreement at the time of such use.

1. Definitions.

For purposes of this Agreement:

1.1 “Account” means Your Platform account and profile, accessed using Your unique username and password.

1.2 “Charge” means the charge payable by You in respect of the Plan to which You have subscribed as set out in the Agreement or any alternative pricing as may be agreed in writing with Klipboard.

1.3 “Content” means all visual content and materials that You or Your End Users post or upload to, or disseminate, distribute or transmit through, the Platform including all pictures, photographs, text, graphics, data, files, links, information, chats, and any other content and materials.

1.4 “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (“GDPR”) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “data controller”, “data processor”, “process” and “personal data” shall have the meanings given to those terms in such data protection laws and regulations.

1.5 “Documentation” means any and all user manuals, instructions, videos, brochures or similar media relating to the use of the Klipboard Platform made available by Klipboard.

1.6 “End User” means those employees, agents and independent contractors of You who are authorised by You to use the Software and the Documentation pursuant to or in accordance with, an End User Contract. “End User”, as defined, is further limited to only the maximum number of End Users permitted by Your Plan.

1.7 “End User Contract” means the terms on which You grant each End User access to the Klipboard Platform. Your “End User Contract” must be at least as protective of Klipboard and the Platform as this Agreement. If You choose to make the Klipboard Platform available to Your End Users without a written End User Contract, You acknowledge and agree that You are solely liable and responsible for Your End Users’ compliance with the requirements set forth in this Agreement.

1.8 “Intellectual Property Rights” means all intellectual property rights including rights in software and computer programs, copyrights, database rights, sui generis database rights, discoveries, concepts, domain names, patents, secret or other processes, technologies, know how, inventions, ideas, improvements, information, trade secrets, business methods, logos, documents, manuals, designs, trademarks, anywhere in the world existing now or in the future (whether any of the foregoing is registered or unregistered and including any application or right of application in relation to any of them).

1.9 “Plan” means the Klipboard subscription plan to which You have subscribed (set out at https://klipboard.io/pricing-field-service-management-software/), which includes the applicable charges and billing schedule for Your Plan, as agreed to by the parties.

1.10 “Platform” means the online Klipboard mobile field service platform accessible through https://app.klipboard.io/ and respective iOS and Android mobile applications, including all documentation, manuals, videos and software in or accessible through the Platform, excluding Your Content.

1.11 “Privacy Policy” means the Klipboard privacy policy available at https://klipboard.io/privacy-policy/, which sets out how it collects, generates and handles personal data.  You agree to the privacy policy when You agree to this Agreement.

1.12 “Support” means the customer support available with Your Plan in relation to the Platform as outlined in Clause 5 of this agreement.

 

2. Free Trial License.

2.1 Klipboard offers a free trial version of the Platform for you to evaluate the Platform before committing to a paid Plan. If You enroll in the free trial version of the Platform, Klipboard hereby grants You, subject to this Agreement and for a period not to exceed 14 days, a limited, non-exclusive, non-transferable, revocable right to access and use the Platform solely to enable You to assess whether the Platform meets Your requirements. Klipboard reserves the right to end Your free trial at any time for any reason.

2.2 You may activate a free trial only once. During the initial free trial period, You may allow access to multiple End Users. If multiple free trials are activated Klipboard reserves the right to terminate Your access and erase all data uploaded to the Klipboard Platform.

2.3 If by the end of the free trial period You do not subscribe to and pay for a paid Plan, Klipboard reserves the right to disable Your access to the trial account and delete all data, Content and configurations made during the free trial period.

2.4 Klipboard may, at its sole discretion, extend your free trial beyond 14 days for a period of its choosing.

2.5 Under no circumstances does Klipboard accept any responsibility for loss of content or data during your free trial period.

 

3. Commercial Version.

3.1 License Grant. Subject to the terms and conditions of this Agreement and solely in the manner and to the extent permitted by and provided for in Your Plan, Klipboard hereby grants You a limited, non-exclusive, non-transferable, revocable right to access and use the Platform to:

3.1.1 create and upload Content to Your Klipboard Platform Account;

3.1.2 manage End Users from Your Klipboard Platform Account for Your business purposes and in accordance to Your Plan

 

4. License Limitations.

4.1 Except as expressly permitted by the terms of this Agreement, You shall not and shall ensure that Your End Users do not:

4.1.1 copy, modify, adapt, translate, or otherwise create derivative works of the Platform, Klipboard Intellectual Property or any software, services, or other technology of the third-party vendor(s) or hosting partner(s) who provide the infrastructure, hardware, software, networking, storage, and related technology required to operate and provide the Platform;

4.1.2 store, distribute, post, upload or transmit any Content through the Platform that (a) is or is at risk of being perceived to be unlawful, embarrassing, harmful, threatening, bullying, libelous, defamatory, obscene, harassing, annoying, racially or ethnically offensive, inciting hatred or invasive of a person’s privacy; (b) that facilitates or promotes illegal activity, violence, discrimination based on race, gender, color, religious or philosophical belief, sexual orientation, disability or any other illegal activities; (c) depicts or contains sexually explicit or pornographic images; and/or (d) infringes the Intellectual Property rights of a third party;

4.1.3 knowingly introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the Platform;

4.1.4 do anything which may negatively impact the Platform IT system or environment or availability of the Platform;

4.1.5 attempt to duplicate, modify, sub-license, copy, adapt, distribute, market, lease, create derivative works from or resell the Platform (or any part of it including any of the software in or accessible through it);

4.1.6 access and use the Platform in order to build a product or service competitive with the Platform;

4.1.7 attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Platform (including any of the software in or accessible through it) or to discover or disclose the source code, methods and concepts embodied in the Platform (including any of the software in or accessible through it) except as may be allowed by any applicable law notwithstanding contractual prohibition;

4.1.10 alter, obscure, remove, conceal or otherwise interfere with any markings on or in the Platform which refers to Klipboard or includes any of its trademarks or logos;

4.1.10 use the Platform for the purposes of direct marketing or promotion to anyone other than Your End Users and their customers;

4.1.11 suggest or state that Klipboard endorses or supports Your Content;

4.1.12 circumvent or manipulate any of the restrictions or security-related features within the Platform, such as with respect to the number of permitted End Users; or

4.1.13 engage in any deceptive, unfair or misleading practice and/or in violation of applicable law.

 

5. Support.

5.1 You are entitled to Klipboard’s standard customer support services offered with Your Plan. Klipboard’s standard customer support services is provided 9am – 6pm Monday – Friday excluding UK Public Holidays. You should make all reasonable efforts to investigate and diagnose problems before contacting customer support. Klipboard may change the support services offered from time to time in the manner it sees fit, provided it does not materially decrease the quality or timeliness of the support services available under Your Plan. The Customer may purchase enhanced support services separately at Klipboard’s then current rates.

 

6. Access by End Users.

6.1 You are responsible for ensuring that Your Plan has available End Users for the number of End Users accessing and using the Platform. You shall not allow any End User profile to be used by more than one individual person unless it has been reassigned in its entirety to a different individual (in which case You shall ensure the prior End User ceases to have any access).

6.2 You are solely responsible for Your End Users’ compliance with the terms of this Agreement. Upon request, You shall take all steps to enforce Klipboard’s rights against any particular End User and/or procure compliance by an End User with the terms of this Agreement, which may include restricting specific End Users access to the Platform). If it believes there to be good reason to do so, Klipboard reserves the right to restrict or disable (on a temporary or permanent basis) access to the Platform and/or to delete one or more of Your End Users. Klipboard will not permanently disable Your Account without first notifying You and giving You an opportunity to cure such noncompliance, if curable.

 

7. Acceptable Use of the Platform.

7.1 You are responsible for the way in which You and Your End Users access and use the Platform and for any Content stored, posted or uploaded to, or distributed or transmitted through, the Platform by or on behalf of You or Your End Users.

7.2 You shall use commercially reasonable efforts to prevent any unauthorised access to or use of the Platform and, in the event of any such unauthorised access or use, shall promptly notify Klipboard.

7.3 You shall comply with all applicable laws, regulations, rules and codes with respect to Your activities relating in any way to Your use or exploitation of the Platform

7.4 You shall notify Klipboard in writing of any breach of this Agreement by You or any End User immediately upon becoming aware of such breach or reasonably suspecting that a breach has occurred.

 

8. Your Account.

8.1 You are responsible for all use of Your Account and for maintaining the security of Your Account and the confidentiality and security of the password and username for Your Account. Please contact Klipboard immediately if You know or suspect Your Account has been accessed by an unauthorized third party.

8.2 You are responsible for ensuring that any mobile device hardware that is used to access Your Account has the minimum operating software requirements as per our guidance here

 

9. Acknowledgements.

9.1 Klipboard may destroy or otherwise dispose of Your Content in its possession unless Klipboard receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the You of the then most recent back-up of Your Content. Klipboard shall use reasonable commercial endeavours to deliver the back-up to You within 30 days of its receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).You shall pay all reasonable expenses incurred by Klipboard in returning Your Content.

9.2 You and Your End Users are solely responsible for supplying all equipment, Internet access and bandwidth needed to properly access and use the Platform.

9.3 You and Your End Users are responsible for any transactions made through the Invoicing and Quoting module including compliance with any VAT and/or sales tax liability that may apply.

9.4 You acknowledge and agree that Klipboard may, from time to time, change, suspend access to, replace or discontinue features or any other aspects of the Platform.

 

10. Payment.

10.1 You agree to pay all fees in accordance with the Plan You selected. You may not withhold payment or claim any right of set-off without prior written consent. If you enroll in the Automatic Bill Payment option, You authorise Klipboard to bill the applicable Plan fee to Your credit or debit card or to debit the Plan fee from Your account in advance for the upcoming period.

10.2 Plan fees may change over time, however, Klipboard will give You thirty (30) days prior notice, generally via email. If Klipboard revises Your Plan fees, the change will take effect on the date stated in the notice (but in no case will a change affect a period for which You have paid in advance).

10.3 All Plan fees are exclusive of any taxes and duties such as value added tax, sales-and-use tax, import or other duties. You are responsible for paying all taxes and duties at the appropriate rate and in the manner for the time being provided by applicable law.

10.4 If you fail to pay Klipboard for Your Plan, Klipboard may, in its sole discretion, (a) disable access for You and End Users to some or all of the Platform and/or terminate this Agreement; (b) delete and remove Your Content; and/or (c) charge You daily interest (both before and after judgment) on the outstanding balance at a rate of 10% per annum.

10.5 If You have chosen to pay by direct debit and Your bank is unable to make payment in any month, Klipboard may cancel Your direct debit facility and demand a different method of payment. In these circumstances, You may be charged, and agree to pay, an administrative fee.

10.6 Klipboard may change the billing period or the payment terms for any reason including failure to pay in full on time or if You have not properly authorized the use of a credit card or debit card.

10.7 In the event You reach the maximum number of End Users permitted by Your Plan, additional users can be purchased in accordance to Your Plan.

 

11. Cancellation and Termination.

11.1 You must maintain an active Plan for Your End Users to continue using and accessing Your Account. You may cancel Your subscription with Klipboard at any time with 30 days’ prior written notice, however, payment for the current term is non-refundable.

11.2 Klipboard may terminate this agreement (a) where permitted by another provision in this Agreement; (b) if You or Your End Users breach any provision in this Agreement and such breach is not cured within thirty (30) days of notice, if curable; (c) it determines, in its sole discretion, that Your continued use of the Platform damages its reputation or brand; or (d) if You enter into bankruptcy proceedings (whether voluntarily or involuntarily) or receivership and such proceeding or receivership is not concluded or stayed within sixty (60) days, or if You make a general assignment for the benefit of creditors.

11.3 On the day that this Agreement terminates or expires, You agree to deliver and return to Klipboard all copies of the documentation in Your possession and irrevocably delete any electronic versions of documents made available to You. You must pay all sums due and owing to Klipboard immediately upon the termination or expiration of this agreement.

11.4 Termination or expiration of this agreement does not affect or prejudice any rights, remedies, obligations or liabilities a party accrued up to the date of termination or expiration or the continuation or commencement of any provision that expressly or by implication is intended to survive the termination or expiration of this Agreement.

11.5 It is Your responsibility to retain the original source of all Your Content or to export all Your Content prior to terminating Your Plan. Klipboard reserves the right to delete all Content from the Your Account upon termination or cancellation of Your Plan.

 

12. Intellectual Property.

12.1 Other than Your Content and Your trademarks, You acknowledge that the Platform and all intellectual property contained therein, including, but not limited to, text, works of authorship, software, music, sound, photographs, video, graphics, and third party materials, is proprietary to Klipboard and its licensors, and Klipboard and its licensors retain exclusive ownership of the same throughout the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other intellectual property and proprietary rights thereto. Except for the limited express license granted to You under this Agreement, Klipboard and its licensors retain all right, title or interest in and to the Platform.  You acknowledge and agree that any ideas, enhancements, improvements, additions or modifications to the Platform, suggested by You, and any and all intellectual property rights contained therein, will become Klipboard property, and You hereby assign and agree to assign any and all right, title and interest to any rights in such suggestions to Klipboard.

12.2 You agree to not make any representation, promise, warranty or other statement of fact about the Platform that is not expressly set out in the documentation provided by Klipboard to You. You agree that You will not make any representation, promise or warranty or other pledge, or incur any liability, on its behalf or purport to pledge its credit or make any contract binding upon us.

 

13. Data Protection.

13.1 The Parties shall at all times comply with applicable Data Protection Act 2018 and make take such actions as it, in their sole discretion, deems necessary to comply with the Data Protection Act 2018.

13.2 The Parties acknowledge that for the purposes of the Data Protection Act 2018, You are the data controller and Klipboard is the data processor.

13.3 Klipboard shall, as a data processor and in relation to personal data that it processes on behalf of You, comply with its obligations set out in this clause 13.3: You shall comply with Your obligations as set out in this clause 13.3:

13.3.1 Klipboard shall act only in accordance with these Terms and with Your instructions in relation to the processing of personal data (including instructions in relation to the return or destruction of personal data). In the event that a legal requirement prevents Klipboard from complying with such instructions or requires Klipboard to disclose the personal data to a third party Klipboard shall, unless such legal requirement prohibits it from doing so, inform You of the relevant legal requirement before carrying out the relevant processing activities;

13.3.2 Klipboard shall take reasonable steps to ensure the reliability of staff having access to the personal data and that all staff to whom it discloses personal data are made aware that the personal data is confidential information of Yours and subject to these Terms;

13.3.3 Klipboard have and maintain appropriate technical and organisational measures, in accordance with Data Protection Act 2018 , to prevent unauthorised or unlawful processing of personal data and accidental loss or destruction of, or damage to, personal data, including operating a security strategy. Klipboard shall maintain such security measures for as long as it is processing the personal data;

13.3.4 Klipboard shall, at Your expense, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR;

13.3.5 Klipboard shall, at Your choice, destroy or return all personal data to You at the end of the provision of services relating to processing and, within a reasonable amount of time, delete existing copies unless European Union law or a law of a Member State of the European Union requires the storage of the personal data;

13.3.6 Klipboard shall, make available to You, and at Your expense, all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections conducted by You or another auditor authorised by You provided always such inspections and/or audits shall be carried out on reasonable notice, at reasonable intervals and during normal business hours of Klipboard and upon production of appropriate identity evidencing authority. You undertake to ensure avoidance of disruption (or at least minimise disruption, where avoidance is not possible) to the day to day operations of Klipboard’s business and/or damage or injury to Klipboard’s equipment, premises, personnel;

13.3.7 Klipboard uses sub-processors for the purposes of providing access to, ongoing support and development of, the Platform. Klipboard currently uses the following categories of sub-processors: Cloud Service Providers, Cloud-based Support Services, Cloud-based Email Notification Services. Changes to same will be notified to You by way of updates to these Terms. Klipboard shall, where it engages another processor for carrying out specific processing activities on behalf of the controller, use reasonable endeavours to ensure that the same data protection obligations as set out in these Terms shall be imposed on that other processor by way of contract or other legal act under European Union law or the laws of a Member State.

13.4 You acknowledge that Klipboard is reliant on You for directions as to the extent to which Klipboard is entitled to use and process the personal data. Consequently, You shall indemnify and keep indemnified Klipboard and its permitted assign for: (i) any claim brought by a data subject, any person, or a supervisory authority against Klipboard (and any damages, fines, awards, expenses, liabilities, and/or losses suffered or incurred by Klipboard) arising from any action or omission by Klipboard or its sub-contractor, to the extent that such action or omission resulted from Your instructions except to the extent that same has arisen out of non-compliance by Klipboard or its sub-contractors with their obligations under Data Protection Act 2018; and (ii) any damages, fines, awards, expenses, liabilities, and/or losses suffered or incurred by the Klipboard (and/or its permitted assigns) arising as a result of a breach by You of Your obligations under Data Protection Act 2018.

13.5 You warrant and represent that You have obtained and/or have in place, all necessary consents, approvals and/or valid legal basis for the lawful transfer of personal data to Klipboard for the purposes of these Terms and the provision of services by Klipboard.

 

14. Intermediate Data Processing

14.1  Klipboard Limited is the data processor (intermediate processor)

14.2  You are the data controller (controller)

14.3  Microsoft Azure is the cloud service provider (processor or cloud provider)

14.4  The ‘intermediate processor’ shall provide cloud based services for the ‘controller’ in accordance with the principal contract.

14.5  The ‘intermediate processor’ shall provide the services for as long as a valid contract exists for the cloud based services in accordance with the principal contract.

14.6  The nature of the processing of personal data will be determined by the ‘controller’ and no personal data will be processed by the ‘intermediate processor’ under this contract.

14.7  The purpose of processing will be as described in the principal contract.

14.8  The types of personal data processed will be determined by the ‘controller’ and no personal data will be processed by the ‘intermediate processor’ under this contract.

14.9  The ‘controller’ warrants it has title over, or a license to process, the personal data, and that it is doing so legally and in accordance with the requirements of personal data protection law including the PRR

14.10  The ‘intermediate processor’ will not interact with personal data as part of this contract, any interaction with personal data by the ‘intermediate processor’ under the instructions of the ‘controller’ will be subject of an additional contract governing the specifc processing concerned.

14.11  The ‘intermediate processor’ uses, and the ‘controller’ agrees to the use of, cloud services provided by the ‘cloud provider’. These cloud services are provided within the EU or the UK. The ‘cloud provider’ are a processor of the personal data.

14.12  The ‘cloud provider’ have committed themselves to security and privacy, and are suitably certifed.

14.13  The ‘intermediate processor’ will not engage other processors without prior specifc written authorisation of the ‘controller’.

14.14  The ‘intermediate processor’ will ensure any other processor engaged will be subject to the same data protection obligations as set out in the contract. Any engaged processor will provide su cient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of GDPR.

14.15  The nature of processing, being that the ‘intermediate processor’ will not interact with the data as part of this contract, means that the ‘intermediate processor’ will enable the ‘controller’ to ful l their obligation to respond to requests for exercising the data subject’s rights, and to ensure compliance with the obligations pursuant to Articles 32 to 3 of GDPR, but will not perform these tasks for the ‘controller’ as part of this contract.

14.16  The ‘intermediate processor’ will at the choice of the ‘controller’, delete or return all the personal data to the ‘controller’ after the end of the provision of services relating to processing, and delete existing copies unless European Union or UK law requires storage of the personal data.

14.17  The ‘intermediate processor’ will make available to the ‘controller’ all information necessary to demonstrate compliance with the obligations laid down in Article 28 of GDPR and allow for and contribute to audits, including inspections, conducted by the ‘controller’ or another auditor mandated by the ‘controller’.

 

15. Warranties.

15.1 Klipboard uses commercially reasonable efforts to keep the Platform available, however, it does not guarantee that use of the Platform will be uninterrupted or error free at all times and in all circumstances, nor that such interruption or errors will be corrected. If for any reason Klipboard expects the Platform to be down for a period longer than expected for routine maintenance, Klipboard will use reasonable efforts to publish in advance details of such activity on the website. Klipboard shall not be liable for any interruption or use of the Platform unless due to its gross negligence. We do not warrant that the services will meet your requirements or that they will be suitable for any particular purpose. It is your sole responsibility to determine that the Platform meet the needs of your business or otherwise and are suitable for the purposes for which they are used.

15.2 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, YOU AGREE THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KLIPBOARD EXCLUDES ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS THAT ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT (INCLUDING ANY IMPLIED TERMS, WHETHER BY STATUTE, EQUITY, COMMON LAW, COURSE OF TRADE OR DEALING OR OTHERWISE) INCLUDING ANY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THE LEVEL OF SKILL AND CARE TO BE APPLIED BY KLIPBOARD AND ANY OTHERS WHATEVER. YOU ACKNOWLEDGE THAT YOU ARE DEALING WITH KLIPBOARD AS A BUSINESS AND NOT AS A CONSUMER.

 

16. Liability.

16.1 EXCEPT FOR FRAUD OR FRAUDULENT MISREPRESENTATION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KLIPBOARD BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, BUSINESS OR BUSINESS OPPORTUNITY, ANTICIPATED SAVINGS OR WASTED MANAGEMENT TIME, WORK STOPPAGE, LOSS, DELETION OR CORRUPTION OF CONTENT OR DATA, COMPUTER FAILURE OR MALFUNCTION, DENIAL OF SERVICE, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE EXCEPT FOR FRAUD OR FRAUDULENT MISREPRESENTATION, KLIPBOARD’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL SUBSCRIPTION PAYMENTS MADE TO KLIPBOARD BY YOU IN THE PRECEDING SIX (6) MONTHS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. KLIPBOARD IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU, END USERS OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PLATFORM AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.

16.2 If You are not satisfied with the service provided by Klipboard Your sole and exclusive remedy is to terminate your subscription to the Platform.

 

17. Indemnification.

17.1 You agree to defend, indemnify, and hold harmless Klipboard from and against any claims, demands, damages, losses, liabilities, awards and/or expenses suffered and/or incurred or agreed to be paid out by Klipboard arising out of or in connection with Your use or the use by Your End Users of the Platform in breach of this Agreement and/or any Content posted, uploaded, distributed, transmitted or disseminated by You or Your End Users.

 

18. Confidentiality.

18.1 Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. This provision does not apply to information which (a) is or becomes a part of the public domain through no act or omission of the receiving Party; (b) is lawfully in the possession of the receiving party before the disclosure took place; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; and/or (d) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, You shall treat the Platform and any Intellectual Property Rights therein as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Klipboard ’s prior written permission. Each party’s obligations under this clause 18 shall apply at all times during the term of this Agreement and shall survive termination of this Agreement.

18.2 The Platform, in the normal course of operations, provides Klipboard with aggregated, statistical data (such as product or feature usage and functionality metrics), which is anonymized and aggregated with other such anonymized data so that it does not and cannot contain any information identifiable or attributable to You or any End User, either alone or in combination with other data (“Aggregated Anonymous Data”). To the extent that any Aggregated Anonymous Data is collected by Klipboard, You agree that Klipboard may use, store, analyze, and disclose such Aggregated Anonymous Data without Your prior written consent.

 

19. Miscellaneous.

19.1 You agree that Klipboard may use Your business name and logo on its marketing and promotional materials for the Platform, for as long as You use the Platform.

19.2 Klipboard shall not be deemed to be in default of this Agreement if it is prevented, hindered or delayed in performing its obligations under this Agreement by acts, events, omissions or accidents beyond its reasonable control including strikes, lock-outs or other industrial disputes (including with respect to its staff), failure of a utility service, Internet access or transport or electronic communications networks, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of equipment, fire, flood storm or default of suppliers or subcontractors.

19.3 The provisions in this Agreement may only be waived by Klipboard in writing by express reference to this clause. No delay or neglect on its part in enforcing against You any provision of this Agreement is a waiver and does not in any way prejudice its right under this Agreement.  A waiver by Klipboard of any breach of any provision of this Agreement does not constitute a general waiver of such provision.

19.4 This Agreement does not give rise to any partnership, joint venture, agency or employment relationship between You and Klipboard.

19.5 Unless expressly stated otherwise herein, any notice, demand, request or delivery required or permitted to be given by a party pursuant to the terms of this Agreement shall be in writing to the address, notified to You by us, with written copies of any legal notices sent to Klipboard Limited, 201 Borough High Street, London SE1 1JA. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

19.6 You shall not assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement without Klipboard’s prior written consent. Klipboard may at any time assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. You agree to execute any necessary document attesting and/or giving effect to such.

19.7 For avoidance of doubt, any provisions of the Agreement containing license restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.

19.8 The masculine gender includes the feminine and neuter and the singular number include the plural and vice versa and words importing persons include firms or companies. The section headings are inserted for convenience and are not a part of this Agreement. Amendments to this Agreement may be made only with Klipboard’s prior written consent. Terms such as “including”, “in particular”, “such as”, and “for example” are not read as exhaustive, or to limit, but may extend the generality of the provisions to which they relate.

19.9 If any provisions of this Agreement are held to be unenforceable, illegal or void in whole or in part the remaining portions of this Agreement shall remain in full force and effect.

19.10 This Agreement, and the schedules and exhibits attached or referenced herein, represent the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, understandings and agreements concerning such matters.

19.11 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY ACCESSING, RUNNING OR USING THE PLATFORM IN ANY WAY YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS.  YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN KLIPBOARD AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.