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Clunk Click End User Agreement |
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Read this document carefully. It is a contract (the “Contract”) between you (hereinafter referred
to either as “you” or the “User”) and Clunk Click Limited (“Clunk Click”). By using the Product
or Service, as defined below, you acknowledge that you have read this Contract and you agree to be bound by it.
1. General Provisions
1.1 Clunk Click agrees to provide you with software (the “Product”) to be used in conjunction with a data
backup service (“Service”) provided by Clunk Click. You may copy the Product solely for the purpose of evaluating or utilising
the Service. Any other use is strictly prohibited.
1.2 By accepting or using the Product, you acknowledge that you do not own it. Under the terms of this Contract, in
consideration of the fees you pay to Clunk Click in accordance with section 4 below, you may use the Product only in conjunction with the Service.
1.3 You specifically agree not to make any attempt to modify decompile or reverse engineer the Product or otherwise discover the source
code or underlying processes or algorithms of the Product.
1.4 Acceptance of this agreement constitutes your express written consent to the transfer of any personal data outside
the countries of the European Economic Area and specifically that personal data is being processed in the United States of America. As required
by Schedule 1, Part II of the Data Protection Act 1998 Clunk Click shall comply with the obligations set out in the seventh principle
of Schedule 1 in respect of all processing carried out on your behalf.
1.5 You agree not to use the backup service to store photographs, pseudo-photographs, films, articles, sound records,
messages, or any other material that may be stored in a computer that may be described as indecent or obscene or is otherwise illegal.
2. Warranty Provisions
2.1 Clunk Click warrants that the Product and Service will perform substantially in accordance with the help file that accompanies the Product for
the duration of your use of the Service.
2.2 If the Product of Service fails to perform as promised in this Contract, your sole and exclusive remedy
shall be the return of fees paid for use of the Product or Service during the period for which the Product or Service failed to perform
as promised.
2.3 Notwithstanding the foregoing, if any failure of the Product or Service has resulted from abuse, misapplication, or
unauthorized use, the limited warranty provided by this Contract is and shall be void.
2.4 Under no circumstances will Clunk Click be liable for data that was never sent by you, using the Product,
to the backup data center that is run and maintained by Connected Corporation for Clunk Click. You are therefore advised to check the log file
to ensure that the desired files have been transmitted.
2.5 To the maximum extent permitted by applicable law you acknowledge that the Clunk Click’s obligations
and liabilities in respect of the Product are exhaustively defined in this Contract. You agree that the express obligations
and warranties made by Clunk Click in this Agreement are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation
of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection
with this Contract including (without limitation) as to the condition, quality, performance, or fitness for the purpose of the Product or any part of it.
2.6 You are responsible for the consequences of any use of the Product. Clunk Click will not be liable for any
indirect or consequential loss, damage, cost or expense of any kind whatsoever and however caused, whether arising under contract,
tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data, loss of profits
or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if Clunk Click has been advised of their possibility.
2.7 Clunk Click accepts liability to the extent it results from the negligence of Clunk Click and its employees
for:
2.7.1 Death or injury without limit; and
2.7.2 Physical damage to or loss of the Customer’s
tangible property up to the amount of the Price in respect of each incident or series of connected incidents.
2.8 In all other cases not falling within clause 2.6 Clunk Click’s total liability (whether in contract,
tort, including negligence, or otherwise) under or in connection with this Contract or based on any claim for indemnity or contribution
will not exceed the Price.
2.9 You agree that, except as expressly provided in this clause 2 Clunk Click will not be under any liability
of any kind whatsoever and however caused arising directly or indirectly in connection with this Contract. You will indemnify Clunk Click in respect
of any third party claim for any injury, loss, damage or expenses occasioned by or arising directly or indirectly from your possession,
operation, use or modification of the Product except and in so far as Clunk Click is liable as expressly provided in this Agreement.
2.10 You acknowledge and agree that the allocation of risk contained in this clause 2 is reflected in the Price paid for the Product
and Service and is also recognition of the fact that inter alia it is not within Clunk Click’s control how and for what purpose the
results of the Service are used by the Customer.
3. Term
3.1 When you agree to the terms of this Contract, you acquire a license to use the Product. The User’s license to use the product is valid
only for so long as you actually use and pay for the Service provided by Clunk Click. At no time and under no circumstances do you
acquire an ownership interest in the Product.
3.2 The license provided by this Contract expires upon the earlier to occur of the following: (i) Clunk
Click receives actual notice from you that you wish to cancel the Service, or (ii) you have failed to pay service charges due under
section 4 of this Contract within 30 days of their due date.
3.3 Your license will also terminate without further action or notice by Clunk Click if you become bankrupt, go
into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative
receiver or receiver appointed or suffer or file any similar action in consequence of debt.
3.4 Following termination of your license for whatever reason:
3.4.1 You will destroy the software together will all copies in any form, including copies on your hard and backup disks.
3.4.2 Any use of any copies of the software will be unlawful; and Clunk Click shall have the right to delete
your stored Data without liability for loss or damage.
3.5 You agree to contract for the provision of the Service for a minimum twelve month period. If you terminate
your contract with Clunk Click prior to the expiry of this twelve month period, otherwise than by reason of any breach of this Contract
on the part of Clunk Click, you will be liable to make a one-off payment for the length of time remaining under the contract calculated
on the banding rate applicable to your highest rate of usage of the Service.
4. Pricing
4.1The price you pay for the Service will be the price shown within the relevant banding rate applicable from time
to time and stipulated on the Clunkclick website www.clunkclick.net.
4.2 You acknowledge that the price shown within the relevant banding rate is subject to change and is dependent
upon the service package selected and the amount of data that is being stored.
5. Governing Law
5.1 This Agreement will be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to
the non-exclusive jurisdiction of the Courts of England and Wales.
6. Entire and Final Agreement
6.1 This agreement shall constitute the entire agreement and understanding between the parties with respect to all matters, which are referred
to and shall supersede any previous agreement(s) between the parties in relation to the matters referred to in this agreement.
7. Force Majeure
7.1 Neither party shall be liable for any failure or delay in performance of this agreement, which is caused by circumstances
beyond the reasonable control of that party.
8. Supervening illegality and severance
8.1 Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective
to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of this Agreement,
and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions
in any other jurisdiction.
9. Dispute Resolution
9.1 Clunk Click and the User will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this
agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to
the representatives nominated by each party who will meet in good faith in order to try and resolve the dispute. If the dispute or
difference is not resolved as a result of such meeting either party may (at such meeting or within 14 days of its conclusion) propose
to the other in writing that structured negotiations be entered into with the assistance of a neutral adviser or mediator (‘Neutral Adviser’)
before resorting to litigation.
9.2 If the parties are unable to agree on a Neutral Adviser or if the Neutral Adviser agreed upon is unable or unwilling to act, any
party may, within 14 days from the date of the proposal to appoint a Neutral Adviser or within 14 days of notice to any party that
he is unable or unwilling to act, apply to the Centre for Dispute Resolution (‘CEDR’) in London to appoint a Neutral Adviser.
9.3 The parties will within 14 days of the appointment of the Neutral Adviser meet with him in order to agree a programme for
the exchange of any relevant information and the structure to be adopted for the negotiation to be held in London. If considered appropriate the parties may at
any stage seek assistance from CEDR to provide guidance on a suitable procedure.
9.4 All negotiations connected with the dispute will be conducted in complete confidence, and the parties undertake
not to divulge details of such negotiations except to their professional advisers who will also be subject to such confidentiality, and will
be without prejudice to the rights of the parties in any future proceedings.
9.5 If the parties accept the Neutral Adviser’s recommendations or otherwise reach agreement on the resolution of the dispute,
such agreement shall be reduced to writing and once, it is signed by their duly authorised representatives, shall be final and binding on
the parties.
9.6 Failing agreement, any of the parties may invite the Neutral Adviser to provide a non-binding but informative opinion
in writing as to the merits of the dispute and the rights and obligations of the parties. Such opinion will be provided on a without prejudice basis and
will be private and confidential to the parties and may not be used in evidence in any proceedings commenced pursuant to the terms of this Agreement
without the prior written consent of all the parties.
9.7 If the parties fail to reach agreement in the structured negotiations within 30 days of the Neutral Adviser
being appointed, such a failure shall be without prejudice to the right of any party subsequently to refer any dispute or difference
to litigation but the parties agree that before resorting to litigation structured negotiations in accordance with this clause (no) shall have
taken place.
9.8 Nothing contained in this clause 9 shall restrict either party’s freedom to commence legal proceedings
to preserve any legal right or remedy or protect any proprietary or trade secret right.
10. Data Protection
10.1 Clunk Click is a recognised Data Controller listed on the UK Data Protection Register under registration number
Z6882260 for compliance with the Data Protection Act 1998.
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Clunk Click®© 1999-2002
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