Clue Computing End User Licence Agreement (“EULA”)
This EULA is made and entered into between Clue Computing Company Limited of Clue House, Petherton Road, Hengrove, Bristol, BS14 9BZ (“Licensor”) and the licensee accessing and using the Software and Services (“Licensee”).
The Licensor is the owner of the Software and the Documentation related thereto (as defined below) and has agreed to license the Software to the Licensee, subject to the terms of the Main Agreement and this EULA.
By accessing and using the Software and Services, the Licensee accepts the terms of this EULA. Where the Licensee is a body corporate, the individual downloading, installing and/or accessing the Software on its behalf acknowledges and agrees that he/she has authority to bind the Licensee to the terms of this EULA.
1.1. “Authorised Users” shall mean the Licensee’s employees, officers, agents and representatives, to whom it provides authorised access to the Software and utilise the Services, together with those of any third party acting on the Licensee’s behalf and whose access is agreed in writing between the parties.
1.2. “Business Hours” shall mean Monday to Friday between 8am and 5:30pm (GMT/BST), excluding public holidays in England and Wales.
1.3. “Data Protection Laws” shall mean the General Data Protection Regulation (EU) 2016/679, as incorporated into UK law pursuant to the European Union (Withdrawal) Act 2018, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case as modified, replaced or superseded from time to time;
1.4. “Documentation” shall mean all or any portion of those visually or machine readable materials provided for use in connection with the Software and Services, including without limitation, all revisions, which shall describe the specifications, characteristics, features, functions, and/or use of the Software and Services, including all training and know-how materials.
1.5. “Feedback” shall mean any feedback, suggestions or service/feature requests made by the Licensee concerning the Software and/or Services.
1.6. “Hosting Terms” shall mean the terms governing the hosting environment on which the Software is maintained by the Licensor, accessible at: https://www.microsoft.com/licensing/docs/customeragreement.
1.7. “Intellectual Property Rights” shall mean copyright, patent, trademarks, trade names, service marks, trade secrets, confidential information or proprietary information rights, moral rights, and all other proprietary, related and similar rights, whether registered or unregistered, which subsist or will subsist, now or in the future, in any part of the world.
1.8. “Maintenance and Support Services” means the Licensor’s standard maintenance and support services, as described in clause 5.
1.9. “Main Agreement” means the agreement between the Licensee and either the Licensor or a Reseller for the provision of the Software and Services.
1.10. “Reseller” means an authorised reseller of the Licensor, with which the Licensee enters into the Main Agreement for the supply of the Software and Services.
1.11. “Services” shall mean the provision of the Software as a hosted solution, together with the Maintenance and Support Services.
1.12. “Software” shall mean the Licensor’s “Investigation & Intelligence Management” software, as modified or replaced by Licensor from time to time.
1.13. Unless the context otherwise requires:
1.13.1. words in the singular shall include the plural and in the plural shall include the singular;
1.13.2. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.13.3. any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
1.13.4. “writing” or “written” means any means of communicating words in a legible and non-transitory form.
2. ACCESS TO THE SOFTWARE AND SERVICES
2.1. Subject to the Licensee entering into and complying with the terms of the Main Agreement, the Licensor hereby grants the Licensee a non-exclusive, personal, non-transferable, non-sublicenseable right to permit Authorised Users to access and use the Software, Services and Documentation for the Licensee’s internal business purposes from the date on which the Licensor or Reseller confirm that access is available and for the applicable subscription term, as determined by the Main Agreement.
2.2. The Licensee shall be responsible for its Authorised Users’ use of the Software and Services and agrees to ensure that all Authorised Users act in accordance with this EULA.
2.3. The Licensee agrees that the number of Authorised Users will not exceed the number of licences purchased by the Licensee from time to time. The Licensor may inspect and audit the Licensee’s use of the Software and Services to verify the number of Authorised Users and the Licensee’s compliance with this EULA.
2.4. The Licensor agrees to use reasonable endeavours to provide or make available the Software and related Services by any date agreed in writing by the parties or otherwise within a reasonable period of time, but any specified date shall be an estimate only.
2.5. Where the Licensor is responsible for the hosting of the Software, the Licensee agrees that the provision of the Software and related Services is subject to the Hosting Terms, and the Licensee shall not do or omit to do anything which may constitute a breach or default of the Hosting Terms.
2.6. The Licensee agrees that it shall not:
2.6.1. use, reproduce, distribute or transfer (with or without consideration) the Software except as provided in this EULA;
2.6.2. decompile (except to the extent permitted by applicable law), reverse engineer, disassemble, modify or prepare any derivative works of the Software, unless permitted in writing by Licensor;
2.6.3. use its rights in any manner to provide information to any third party;
2.6.4. distribute the Software to any other third party except as expressly authorised herein; nor
2.6.5. use its access to the Software and Services to develop or build a competing product or service.
3.1. Where the Licensor is responsible for hosting the Software, the Licensor shall exercise reasonable endeavours to ensure that the Software is accessible 24 hours a day, 7 days a week, except for (i) planned maintenance, which shall be performed outside of Business Hours insofar as possible; and (ii) unscheduled maintenance, which may be conducted for emergency reasons, in which case the Licensor shall endeavour to provide at least four (4) hours’ prior notice.
3.2. Where the Reseller or Licensee is responsible for hosting the Software (whether via cloud, remote, or on-premises solutions), the Licensor shall provide Maintenance and Support to address any defect or issue arising in connection with the Software but shall not be responsible for any unavailability, inaccessibility or defect arising from or attributable to the environment on which the Software is hosted and maintained.
4. UPDATES AND MODIFICATIONS TO THE SOFTWARE
4.1. Unless otherwise specified in the Main Agreement, the Licensor is not obliged to provide any updates to the Software, though it may do so from time to time in its sole discretion. Unless otherwise specified, all such updates shall be subject to the terms of this EULA.
4.2. The development of the Software will remain under the direct control of the Licensor. The Licensor may solicit, from time to time, inputs from the Licensee for product roadmap planning.
4.3. The Licensee may provide Feedback to the Reseller or Licensor at any time. For the avoidance of doubt, nothing in this clause puts the Licensor under any obligation to take such Feedback into account when developing the Software and/or providing the Services. For the avoidance of doubt, Feedback shall not constitute confidential information of the Licensee and may be freely used and exploited by the Licensor. Any Intellectual Property Rights arising in the Feedback and any resulting work, modifications or developments, shall belong to the Licensor.
5. MAINTENANCE AND SUPPORT SERVICES
5.1. The Maintenance Services shall include the provision of routine maintenance in connection with the Software, including updates, patches, and new version releases.
5.2. The Support Services shall include an email and telephone support facility during Business Hours for the purposes of (i) assisting the Licensee with the configuration and proper use of the Software; and/or (ii) determining the causes of any Software errors and using reasonable endeavours to correct the same.
5.3. Support Services can be requested by contacting the Licensor’s helpdesk via telephone on 01174 719888, email to firstname.lastname@example.org, or online via https://cluesoftware.force.com. Each request shall include a description of the request or issue and any other relevant information, sufficient to enable the Licensor to assess the request.
5.4. Support Services are not provided in relation to any third party systems, applications or infrastructure, or any issues arising from the Licensee’s own environment (including but not limited to its hardware, operating system(s), other software used by the Licensee, or telecommunications links).
5.5. The Licensee agrees to provide reasonable assistance to enable the Licensor to assess, inspect and correct any issue reported to it, including by providing any output, data, information, remote access and personnel assistance reasonably requested by the Licensor.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Except as may be specifically permitted under this EULA, the Licensee shall not remove any of the Licensor’s proprietary rights notices from the Software or the Documentation.
6.2. The Licensee acknowledges that all Intellectual Property Rights in the Software (and parts thereof) and Documentation shall be owned by and will remain the property of the Licensor or its licensors.
6.3. The Licensee must promptly notify the Licensor if it becomes aware of any actual or threatened claim alleging that the Licensee’s use of the Software infringes any valid United Kingdom intellectual property right of a third party (a Claim).
6.4. The Licensor will defend the Licensee or, at the Licensor’s option, settle any Claim and be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Claim. The foregoing shall not apply where the Claim is attributable to (i) possession or use of the Software (or any part thereof) other than in accordance with the terms of this EULA or the Main Agreement; (ii) use of the Software in combination with any hardware or software not supplied or specified by us if the infringement would have been avoided by the use of the Software not so combined; or (iii) use of a non-current release of the Software.
6.5. If the Software is or is likely to become subject to a Claim, the Licensor shall use reasonable endeavours to:
6.5.1. obtain the right for the Licensee to continue to use the Software; or
6.5.2. replace or modify the Software (or the part of it subject to the Claim) so that it becomes non-infringing without materially affecting the functionality of the Software.
6.6. If the outcomes in clause 6.5 are not achievable with the use of reasonable endeavours (including where the costs or other outcomes of doing so are commercially prohibitive), the Licensee shall (on receipt of written notice from Licensor) promptly cease using the Software and this EULA and the licence hereunder shall terminate, and the Licensor shall refund any unused portion of the fees paid by the Licensee.
6.7. The provisions of clauses 6.4 to 6.6 (inclusive) constitute the Licensee’s sole and exclusive remedy and the Licensor’s only liability in respect of any Claim.
7. CONFIDENTIAL INFORMATION
7.1. Each party shall, during the term of this EULA and for the period specified in clause 7.3, keep confidential, and shall not use for its own purposes (other than the performance of this EULA) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets, technical information and information of commercial value) which may be disclosed by the other party or become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this EULA, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information. All confidential information disclosed by either party to the other party under this EULA shall be used by the receiving party solely in connection with the performance of this EULA and by authorised employees who are directly involved in the use of confidential information and who have agreed in writing to be bound by the terms of this EULA.
7.2. The terms of this EULA are confidential and may not be disclosed by the Licensee without the prior written consent of Licensor.
7.3. The obligations of each party under this EULA regarding use and disclosure of confidential information shall not terminate until three (3) years after the expiry or termination of this EULA.
8. DURATION AND TERMINATION
8.1. Subject to earlier termination in accordance with its terms, the EULA and licence provided hereunder shall remain in full force and effect in accordance with the Main Agreement. In the event of the termination or expiry of the Main Agreement (howsoever caused), this EULA and the licence provided hereunder shall automatically terminate.
8.2. Without prejudice to the rights in the Main Agreement, the Licensor may terminate this EULA and the licence provided hereunder with immediate effect on giving written notice to the Licensee if: (i) the Licensee commits a material breach of this EULA which is irremediable or, if remediable, is not remedied within fourteen (14) days of written notice from the Licensor requiring it to be remedies; or (ii) the Licensee ceases to carry on business or becomes insolvent or bankrupt (or its local equivalent) or makes any assignment of assets for the benefit of creditors generally (or group of creditors), or on the appointment of a liquidation manager, receiver, or administrative receiver over the Licensee for the benefit of creditors.
8.3. Effect of Termination.
8.3.1. On termination of this EULA, the rights of the Licensee to use the Software, Services and Documentation shall automatically terminate;
8.3.2. Termination of this EULA shall not affect any rights or obligations of either party as at termination; and
8.3.3. On termination for any reason the Licensee shall immediately destroy or return to the Licensor (at the Licensor’s option) all copies of Documentation then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so.
WITHOUT PREJUDICE TO ANY WARRANTIES GIVEN BY THE LICENSOR IN THE MAIN AGREEMENT, NO WARRANTIES ARE GIVEN IN CONNECTION WITH THIS EULA AND THE SOFTWARE IS PROVIDED ‘AS IS’. IN PARTICULAR, THE LICENSOR DOES NOT WARRANT, REPRESENT OR UNDERTAKE THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR FIT FOR ANY PARTICULAR PURPOSE, AND ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THIS EULA WHETHER BY STATUTE, COMMON LAW OR OTHERWISE ARE HEREBY EXCLUDED, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE.
10. LIMITATION OF LIABILITY
10.1. Subject to clause 10.3, the Licensor shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee, including Authorised Users), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
10.1.1. special damage even if the Licensor was aware of the circumstances in which such special damage could arise;
10.1.2. loss of profits;
10.1.3. loss of anticipated savings;
10.1.4. loss of business opportunity;
10.1.5. loss of goodwill;
10.1.6. loss or corruption of data; or
10.1.7. any indirect or consequential losses or damages.
10.2. THE AGGREGATE LIABILITY OF THE LICENSOR UNDER THIS EULA (WHETHER ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, STRICT LIABILITY, OR OTHERWISE) SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE AVERAGE VALUE OF THE FEES PAID BY THE LICENSEE IN RESPECT OF THE LICENSING OF THE SOFTWARE DURING A TWELVE (12) MONTH REFERENCE PERIOD (BEGINNING FROM THE COMMENCEMENT OF THE MAIN AGREEMENT AND ANNUALLY THEREAFTER).
10.3. The exclusions in this clause 11 shall apply to the fullest extent permissible at law, but the Licensor does not exclude or limit its liability for:
10.3.1. death or personal injury caused by the negligence of the Licensor, its officers, employees, contractors or agents;
10.3.2. fraud or fraudulent misrepresentation;
10.3.3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
10.3.4. any other liability which may not be excluded or limited by law.
11. DATA PROTECTION
11.1. Where, in connection with the provision of the Software and Services, the Licensor acts as a processor for and on behalf of the Licensee (and except where the parties have entered into a separate data processing agreement), the provisions of this clause 11 shall apply. For the purposes of this clause, the terms “personal data”, “controller”, “processor”, and “process/processing” shall have the meanings given in the Data Protection Laws.
11.2. Each party warrants that it shall comply with Data Protection Laws in connection with the performance of this EULA. The Licensee also warrants that any personal data provided to the Licensor, or stored or transmitted via the Software, is accurate, complete and up to date, and that the Licensee has obtained all necessary consents or given all necessary notices to enable the processing of such personal data in connection with this EULA.
11.3. In connection with its processing of personal data on behalf of the Licensee, the Licensor agrees that:
11.3.1. it shall only process the personal data in accordance with the Licensee’s written instructions, including as set out in this EULA;
11.3.2. it shall inform the Licensee if, in the Licensor’s opinion, any instructions provided by the Licensee infringe Data Protection Laws;
11.3.3. it shall not transfer any personal data to a country outside of the UK or European Economic Area without the Licensee’s prior written consent or specific instruction to do so;
11.3.4. it shall ensure that any persons employed or engaged by it with access to the personal data are subject to legal binding obligations of confidentiality;
11.3.5. it shall ensure that sub-processors appointed by it are subject to legally binding processing obligations equivalent to those in this EULA, and shall remain primarily liable for the acts and omissions of any sub-processors appointed by it;
11.3.6. it shall notify the Licensee of any proposed change to the sub-processors used by it and provide the Licensee with a reasonable opportunity to object to any such change;
11.3.7. it shall have and maintain appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against any accidental loss or destruction of, or damage to such personal data, including as necessary to ensure compliance with Article 32 of the GDPR;
11.3.8. taking into account the nature of processing and information available to it, it shall provide reasonable assistance and cooperation to the Licensee so as to enable the Licensee to fulfil its obligations to respond to requests from individuals exercising their rights under Data Protection Laws;
11.3.9. it shall promptly inform the Licensee if it becomes aware of any actual or potential breach of security relating to the personal data processed under this EULA, or if it receives any notification, compliant, request or communication in relation to the same, and it shall provide reasonable assistance and cooperation to the Licensee in connection with the same;
11.3.10. taking into account the nature of the data processing activities it undertakes and the information available to it, it shall provide reasonable assistance to the Licensee with carrying out data protection impact assessments and consulting with relevant supervisory authorities where such assessments and/or consultation are required pursuant to the Data Protection Laws, provided that the scope of such assistance shall be agreed between the parties in advance and the Licensee shall pay the Licensor’s reasonable costs incurred in providing such assistance;
11.3.11. on termination or expiry of the EULA, it shall securely delete or return to the Licensee all Licensee personal data, except to the extent that the Licensor is required to retain copies of the personal data to comply with applicable laws; and
11.3.12. it shall make available to the Licensee all information reasonably necessary to demonstrate compliance with the Licensor’s obligations under this clause 11 and allow for and contribute to audits, including inspections, conducted by the Licensee or its authorised representatives, provided that such audit shall take place at the Licensee’s cost, no more than once per year (unless mandated by a competent supervisory authority), within normal business hours and on reasonable notice, with minimal disruption to the Licensor’s business and subject to appropriate confidentiality undertakings.
11.4. For the purposes of this EULA, the data processing particulars are as follows:
11.4.1. Categories of personal data – based on standard fields and fields created by Licensee, which may include name, address, phone number, email address, physical and/or mental health information, sexual orientation, racial or ethnic origin, religious beliefs, trade union activity, political affiliations or opinions, criminal record history, and financial information;
11.4.2. Types of data subject – this is determined by the Licensee’s use of the Software but typical types of data subject are individuals who are: suspected of having committed, or about to commit, an offence; guilty of an offence; known or suspected of being a victim of an offence; witness to or able to provide information concerning an offence;
11.4.3. Subject matter of the processing – the provision of the Software and Services, enabling the Licensee to track and manage cases, investigations and intelligence;
11.4.4. Nature of processing – hosting, storing, transmitting and enabling access to the personal data via the Software;
11.4.5. Duration of processing – the term of this EULA and the applicable Main Agreement; and
11.4.6. Subprocessor(s) – Microsoft Azure for hosting of the Software, together with any other subprocessors agreed by the parties from time to time.
12.1. Assignment. This EULA shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. Except as specifically stated in this EULA, neither this EULA nor any of the rights, interests or obligations of either party shall be assigned, transferred or delegated without the prior written consent of the other party (not to be unreasonably withheld or delayed).
12.2. Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver. A waiver of any right or remedy shall only be valid if made in writing and shall not prevent or restrict any further exercise of that or any other right or remedy.
12.3. Relationship of the parties. Nothing in this EULA shall be construed or implied to create a relationship of partnership, joint venture, agency, employment, franchise or any relationship other than that of independent contracting parties. Neither party shall have the power or authority to bind or obligate the other party.
12.4. Survival. In addition to the rights and obligations which survive as expressly provided for elsewhere in this EULA, clauses 7 (Confidential Information), 8.3 (Effect of Termination), 9 (Disclaimers), 10 (Limitation of Liability), and 12 (Miscellaneous) shall survive any termination or expiry of this EULA.
12.5. Severability. In the event any provision of this EULA is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
12.6. Amendment. No amendment to this EULA shall be effective unless set forth in a written document signed by authorised representatives of both parties.
12.7. A person who is not a party to this EULA shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this EULA.
12.8. Force Majeure. The Licensor shall not be liable for failure to fulfil or delay in fulfilling its obligations when due to causes beyond its reasonable control, including as a result or consequence of any act of God, act or war or terrorism, destruction or cessation of general market activity or other similar occurrence.
12.9. Entire agreement. This EULA, states the entire agreement between the parties with respect to the subject matter of this EULA and shall replace and supersede all previous discussions, proposals, negotiations, representations, agreements and communications, whether oral or written, between the parties.
12.10. Applicable law. This EULA and any dispute arising out of or in connection with it shall be construed in all respects in accordance with the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.
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