1. INTRODUCTION
1.1 Clustermarket Limited, with registered no. 09485659 and registered address at c/o Kadans, 20 Water Street, London, England, E14 5GX (Clustermarket, we, us or our) owns and operates the websites (https://clustermarket.com and https://www.bookkit.org) (the Sites), and the Clustermarket online portal available on the Sites (https://app.clustermarket.com/) (the Portal) (the Sites and the Portal together being the Platform).
1.2 The Portal enables users and providers of scientific and technical resources, such as academic institutions, laboratory facilities, equipment and services, to schedule and manage equipment, report and analyse use of equipment and laboratories, undertaking asset monitoring and such other services as described on the Sites (SaaS Services). It also allows users to connect and contract directly with other users who wish to make use of such resources for scientific or technological research, experiments and measurements through the online Marketplace (as defined below).
1.3 These terms and conditions (the Terms) are between Clustermarket and the organisation you represent or, where you do not designate an organisation in connection with a Subscription, you individually (Customer, you or your). Your use of the Platform will be governed by the Terms and any other documents referred to in these Terms, including the Quote (where applicable), which will form a legal contract between you and us (the Contract). You acknowledge that you will be legally bound by these Terms and you agree that, by signing up to use the Platform, you have the relevant approval or authority to legally bind your organisation, if applicable. You and Clustermarket are each a Party to these Terms, and together are referred to as the Parties.
1.4 By browsing or using the Sites, accessing the Platform, and/or by registering for an account to use the Portal, you are agreeing to be legally bound by the Contract.
1.5 If you would like to contact us for any reason please do so by using the functionality on the Portal or by using the following details:
Address: c/o Kadans, 20 Water Street, London, England, E14 5GX
Email: info@clustermarket.com
Phone: +447746405968 (billing enquiries only)
1.6 Your use of the Platform will be subject to the most recent version of the Terms available on the Platform.
1.7 We reserve the right to revise the Terms at any time, for example in the event that there are changes to relevant laws and regulatory requirements or changes to our business practices. If we revise these Terms we will:
1.7.1. post the revised Terms on the Platform and update the “Last Updated” date below; and
1.7.2 if you have purchased a Subscription (as defined below), we will email you and give you at least one month’s written notice of any changes to these Terms before they take effect. You may be required to accept the revised Terms in order to continue to access or use the Platform. If you do not accept the revised Terms, your Account will be terminated.
1.8 Capitalised terms used in this Terms have the meaning given to them within the relevant clause or as set out in Schedule 1.
1.9 These Terms were last updated on 10 September 2023.
2. REGISTRATION ON THE PLATFORM AND SUBSCRIPTION OPTIONS
Account Registration
2.1. To access and use the Platform, including the Portal, you will need to sign up to the Platform through the Sites and create a user profile by providing your name, email address, telephone number, the nature of your organisation where applicable (i.e. whether you are from an academic institution or industry) and such other information as Clustermarket reasonably require from time to time (User Profile). Once you have created a User Profile you can access certain features of the Platform free of charge, including the ability to create or join a laboratory (Laboratory) either via invitation or requesting access. To access the SaaS Services you must register for either a User Profile or be gain access to a Laboratory (together referred to as an Account). Where you create a Laboratory, an Account will also be created for you. In order to access other organisation’s Account or Laboratory’s you must be invited as an authorised user (Authorised User).
2.2 To register for an Account, you must be a legal entity (for example a company, academic institution or a charity) or natural person in the science or technology sector. Clustermarket reserves the right to make registration subject to further conditions or requirements, for example meeting specific eligibility criteria or completing a verification process, and such conditions and requirements may be different if you are based outside the United Kingdom or European Union or if you are a public authority or a public body.
2.3 To register for an Account, you will be required to complete an Account registration form, which includes information about your organisation (as reasonably determined by Clustermarket from time to time). Where you are purchasing a Subscription on behalf of your organisation, the Account registration form should be completed by a duly authorised representative and, if requested by Clustermarket, proof of such authority to sign, and legally bind your organisation, must be provided without delay. You agree that you will provide accurate, current and complete information and that you will provide any further information reasonably required by Clustermarket as part of the Account registration process.
2.4 Clustermarket may reject any Account registration at its sole discretion and without giving reasons.
2.5 On acceptance of your Account registration, Clustermarket will setup your Account using the information provided.
2.6 If you purchase an Enterprise Subscription, you will gain access to features on the Platform that allow you to setup a hierarchy for all Accounts linked to your organisation, including things such as access controls for Authorised Users.
2.7 Your Account is not transferable. You agree not to share your Account password with any third party and to keep your Account details and Account password confidential and secure. You must notify us of any actual or suspected unauthorised use of your Account or if you have reason to believe your Account or Account password has been compromised in any way. You shall be liable for any unauthorised use of your Account.
Free Trial
2.8 When you register for an Account you will be given free access to the Platform for the Trial Period. After the expiry of the Trial Period, your access to the Platform will automatically terminate, unless you have purchased a Subscription in accordance with these Terms.
2.9 You acknowledge and agree that the Trial Services are provided on an “as-is” basis and without any assurances, warranties or representations of any kind, express or implied, to the extent permitted by law.
2.10 You acknowledge and agree that the Trial Services provide you with limited access to features and functionality on the Platform and that users of a Subscription will benefit from additional features or functionality and Services, depending on the type of Subscription they have purchased. We may change the functionality or features of the Trial Services at any time without notice to you.
2.11 We reserve the right to terminate the Trial Services at any time without notice to you.
Purchasing a Subscription
Core Subscription
2.12 If you wish to purchase the Core Subscription, you can do so through the Portal during the Trial Period. The Core Subscription will provide you with access to the services described here.
2.13 If you do not subscribe to the Core Subscription during the Trial Period, your access to the Platform will automatically cease after expiry of the Trial Period.
Premium Subscriptions
2.14 Clustermarket provides two types of Premium Subscription: one designed for academic institutions (the Premium-Academia Subscription); and one designed for commercial organisations working in the scientific and research industry (the Premium-Industry Subscription).
2.15 If you wish to purchase a Premium-Academia Subscription, you can do so through the Portal at any time. The Premium-Academia Subscription will provide you with access to the services as more particularly described, here.
2.16 If you wish to purchase a Premium-Industry Subscription, you will need to contact us by email or by using the link in the Portal. A member of our sales team will get in touch to discuss your Premium-Industry Subscription. Once you have confirmed your Subscription preferences, our sales representative will send you a Quote confirming your Premium-Industry Subscription and the associated fees. If you wish to accept and purchase the Premium-Industry Subscription, you must follow the link in the email to confirm your order.
Enterprise Subscription
2.17 If you wish to purchase an Enterprise Subscription, you will need to contact us by using the instructions and link in the Portal. A member of our sales team will get in touch to discuss your Enterprise Subscription. Once you have confirmed the Enterprise Subscription package that you would like to purchase, our sales representative will send you a Quote confirming your Enterprise Subscription and the associated fees. If you wish to accept and purchase the Enterprise Subscription, you must follow the link in the email to confirm your order.
2.18 Unless otherwise stated in the Quote, the Quote is subject to these Terms. By accepting the Quote, you are agreeing to be bound to these Terms.
3. AUTHORISED USERS
3.1 If you subscribe to a Premium Subscription or an Enterprise Subscription, you will be required to specify the number of Authorised Users you would like to grant access to your organisation’s Laboratory.
3.2 You will be required to pay for at least the Minimum Number of Authorised Users. The number of Authorised Users over and above the Minimum Number of Authorised Users that you invite to access your Laboratory will be used to calculate the Subscription Fees payable.
3.3 You will have the ability to purchase additional Authorised Users after the start of your Subscription, by providing such Authorised Users access to your Account. Clustermarket shall monitor the number of Authorised Users with access rights to your Account and invoice in respect of any additional Authorised Users in accordance with clause 3.4 below.
3.4 Where the number of Authorised Users you invite to your Laboratory increases during the Initial Service Term or any subsequent Renewal Term, you will be charged for the additional Authorised Users and Clustermarket shall invoice you at expiry of the then-current term, and be required to pay such additional fees within 30 day of the renewal date. You will be required to pay a pro-rated annual fee for such additional Authorised Users, calculated on a pro-rata basis from when such Authorised Users begin using the Platform or Services.
3.5 If the number of Authorised Users decreases during the Initial Service Term or any subsequent Renewal Term, you shall not be entitled to a pro-rated refund of the Subscription Fees in respect of the use by or number of Authorised Users.
4. SCOPE OF THE PLATFORM
4.1 Clustermarket shall provide the SaaS Services materially in accordance with the descriptions provided on the Sites, these Terms and with reasonable care and skill.
4.2 In addition to the SaaS Services, Clustermarket provides an optional online Marketplace which users (including Customers and Authorised Users) may choose to use via the Platform. Your use of the Marketplace shall be governed by the terms set out in Schedule 2.
4.3 We will use reasonable endeavours to provide the Platform and Services with reasonable skill and care, but we do not guarantee (i) the continuous and uninterrupted availability and accessibility of the Platform or the Services, (ii) that the Platform will be secure or free from bugs and viruses, and/or (iii) that the Platform or the Services will be free from errors and/or omissions. We may restrict the availability of the Platform, the Services or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures.
4.4 We shall, at any time, be entitled to modify the Platform or Services without notice to you, including by making new services and functionality available, depending on the Subscription purchased, and providing that we do not materially decrease the functionality of the Services or Platform from those provided at the time of purchase.
4.5 Clustermarket is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledges that the Services and Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.6 You acknowledges that the Platform and Services may enable or assist you to access content of, correspond with, or purchase products and services from third parties via third-party websites or platforms. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you with any such third party. Any contract entered into, and any transaction completed via any third-party website, is between you and the relevant third party, not Clustermarket. We recommend that you refers to the third party's website, terms and conditions and privacy notice prior to using any third-party services.
4.7 You acknowledge that we may offer third party integrations with our Platform, using Application Programming Interfaces (APIs) or similar technology, including but not limited to things such as asset monitoring or electronic lab notebooks (ELN). Where we offer such integrations, to the extent legally permissible to do so, we make no representation, warranty or commitment and shall have no liability in respect of the third party services or technology linked to the integration and your use of any third party services (providing through the integrations) shall be governed by that third party’s terms and conditions.
5. SUBSCRIPTION FEES
Subscription Fees
5.1 You shall pay the Subscription Fees in accordance with these Terms and the Quote, where applicable.
5.2 Core Subscription: Payment of the Core Subscription Fee shall be made using the payment method displayed on the payment page (such payment methods shall be at the sole discretion of Clustermarket and no other methods of payment will be accepted). At the time of purchase of the Core Subscription, you shall provide the relevant purchase order information and credit or debit card details, up-to-date and complete contact and billing information, and you hereby authorise Clustermarket to bill such credit or debit card. You acknowledge that payment of the Core Subscription Fee will be processed via our third party payment provider. Clustermarket will not process or store payment card details.
5.3 Premium-Academia Subscription: Payment of the Premium-Academia Subscription Fee shall be made using the payment method displayed on the payment page, (such payment methods shall be at the sole discretion of Clustermarket and no other methods of payment will be accepted). At the time of purchase, you shall provide the relevant purchase order information and credit or debit card details, up-to-date and complete contact and billing information, and you hereby authorise Clustermarket to bill such credit or debit card. You acknowledge that payment of the Subscription Fee will be processed via our third party payment provider. Clustermarket will not process or store payment card details.
5.4 Premium-Industry Subscription: Details of the Premium-Industry Subscription Fee shall be set out in the relevant Quote. Once you have accepted the Quote in accordance with clause 2.16, an invoice will be generated and sent to you using the email address provided.
5.5 Enterprise Subscription: Details of the Enterprise Subscription Fee (as applicable) shall be set out in the relevant Quote. Once you have accepted the Quote in accordance with clause 2.17, an invoice will be generated and sent to you using the email address provided.
5.6 All Subscription Fees:
5.6.1 are exclusive of VAT (if applicable); and
5.6.2 payable in accordance with these Terms and the Quote.
6. PAYMENT OF SUBSCRIPTION FEES
Subscription Fees
6.1 If you purchase a Subscription:
6.1.1. Core Subscription Fees or Premium-Academia Subscription Fees are payable in accordance with clause 5.2 and clause 5.3, as applicable;
6.1.2 Enterprise Subscription Fees or Premium-Industry Subscription Fees (as applicable) are payable as set out in the Quote by the method agreed between you and Clustermarket from time to time, as follows:
a) payment must be made in full within 30 days of the date of the relevant invoice (the Due Date); and
b) any sums unpaid by their Due Date will attract interest at the rate of 1.5% per month, or the maximum permitted by law, whichever is lower;
6.1.3 if your use of the Services exceeds the level specified in the Quote (for example, in respect of the number of permitted Authorised Users), you agree that Clustermarket may bill you for such additional Services in accordance with clause 3;
6.1.4 you agree that Clustermarket may revise the Subscription Fees (including by adding new charges and fees) by giving you at least 30 days’ written notice, such notice to take effect at the end of the Initial Service Term or any Renewal Term, as applicable;
6.1.5 if you believe that you have been billed incorrectly or received an erroneous invoice, you must raise the issue with Clustermarket (providing full particulars) no more than 10 Business Days from the date of the relevant bill and/or invoice.
7. TERM AND TERMINATION
7.1 These Terms shall be effective for the duration of your use of the Platform.
7.2 We may terminate your Account at any time in our sole discretion by giving you 30 days' prior notice via the Portal or by email.
7.3 If you purchase a Subscription:
7.3.1 these Terms shall commence on the Commencement Date and continue for the Initial Service Term. Unless terminated in accordance with Clause 7.3.2, following the end of the Initial Service Term, these Terms shall be automatically renewed for additional periods of the same duration (each a Renewal Term); and
7.3.2 either party may terminate these Terms by giving at least 30 days’ written notice to the other, to take effect at the end of the Initial Service Term or any Renewal Term, as applicable.
7.4 We may immediately terminate your Account if you have materially breached these Terms or Applicable Law.
7.5 We may immediately suspend your access to your Account and/or the Portal (either permanently or temporarily) in our sole discretion if we have reason to believe you have breached these Terms or Applicable Law. If you have purchased an Enterprise Subscription or Premium Subscription, your obligation to pay the applicable Subscription Fees will not be affected by any such suspension.
8. USER CONTENT
8.1 Subject to the provisions of these Terms, Customers and Authorised Users may create, upload, and post Content on the Portal and make it available to other users (User Content).
8.2 By creating, uploading, posting or otherwise making available any User Content on or through the Portal, you hereby grant Clustermarket a limited, non-exclusive, royalty-free, worldwide, irrevocable, perpetual, sub-licensable and transferable licence to use such User Content in Clustermarket’s provision, development and enhancement of the Portal and associated services.
8.3 By registering for an Account you grant Clustermarket the right to refer to your organisation as a client of Clustermarket for the purpose of advertising and promotion, unless other otherwise agreed with Clustermarket. You hereby grant Clustermarket a limited, non-exclusive, royalty-free, worldwide, sub-licensable and transferable, revocable licence to use your organisation's name and/or trade mark on the Portal for use on Clustermarket’s website, advertising and marketing materials, and for the purposes of providing a Listing on the Marketplace (where applicable).
8.4 You are solely responsible for any User Content that you make available through the Portal and you shall bear all legal consequences and liabilities arising in relation to such User Content.
8.5 Clustermarket does not undertake checks on User Content to determine its quality, suitability, accuracy, timeliness or completeness. However Clustermarket retains the right (without assuming an obligation) to determine the appearance, design, functionality and all other aspects of the Portal and the Content, including the right to re-design or modify the appearance, design, functionality and other aspects of the Portal and any element, aspect, portion or feature thereof (including the Content) from time to time, provided that Clustermarket will not alter or amend User Content without the prior written consent of the relevant Authorised User.
8.6 Clustermarket reserves the right, without prior notice, to edit, suspend or remove any User Content that Clustermarket considers in its sole discretion to be in breach of these Terms or Applicable Law or which may otherwise be harmful or objectionable to Clustermarket or its users.
9. USE OF CONTENT
9.1 You must not, whether in whole or in part, use, copy, edit, adapt, prepare derivative works of, present, publish, exhibit, duplicate, pass on, disseminate, distribute, license, sell or otherwise exploit the Platform and/or any Content (including User Content), except to the extent you are the legal owner of the User Content or as expressly permitted in these Terms.
9.2 Subject to your compliance with these Terms, Clustermarket grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable licence to access the Portal and the Content (including User Content) for the purpose of Providing or using the Resources (as applicable) through the Portal.
9.3 You may download and print extracts of Content from the Portal, provided that:
9.3.1 the material shall not be reproduced or included in any other work or publication in any medium;
9.3.2 the material may not be distributed or sold to any third party;
9.3.3 you do not remove or alter any copyright or other proprietary notices contained in the material; and
9.3.4 such Content is only being used for your internal business purposes.
9.4 Your legal rights that cannot be excluded by law shall remain unaffected by these Terms.
10. WARRANTIES
10.1 You represent, warrant and undertake that:
10.1.1 you have the legal capacity and authority to enter into contracts (including the Contract and any Agreement, where applicable);
10.1.2 if you register an Account for a company or other legal entity, you have the authority to legally bind that entity and grant us all licenses and consents provided in these Terms;
10.1.3 you have all required rights, permits, licences, qualifications/training and consents to either make Resources available for Provision and/or to use Resources (as applicable);
10.1.4 you will comply with all Applicable Laws and not use the Platform for any illegal purpose; and
10.1.5 you will use reasonable endeavours to ensure that your Account information, Listings (where applicable) and User Content are accurate and up-to-date.
10.2 In respect of all User Content that you make available on the Platform, you represent, warrant and undertake that:
10.2.1 you are the legal owner of all such User Content or you have the necessary rights, licences and consents to make such User Content available on the Portal;
10.2.2 such User Content does not infringe any third party’s Intellectual Property Rights or other proprietary rights (including rights of publicity or privacy);
10.2.3 such User Content does not breach Applicable Law;
10.2.4 such User Content is not fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
10.2.5 such User Content does not constitute libel, slander, defamation or is otherwise offensive; and
10.2.6 such User Content does not promote illegal or harmful activities or substances.
10.3 Except as expressly provided in these Terms:
10.3.1 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
10.3.2 the Platform, the Content (including any User Content) and the Services are provided on an "as is" basis.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Platform and the Content are protected by copyright and other intellectual property rights and laws. We are the owner or the licensee of all Intellectual Property Rights in the Sites, the Portal, the Content (excluding User Content) and the Services and you acknowledge and agree that such Intellectual Property Rights shall remain vested in Clustermarket and/or its licensors. For the avoidance of doubt, all Intellectual Property Rights in respect of the User Content shall remain vested in the owner, and you hereby grant Clustermarket a non-exclusive, royalty-free license to use the User Content for the purposes of providing the Services to you, other Authorised Users, Providers or Participants of the Marketplace (as applicable) or customers, or for its own internal business purposes.
11.2 Except as expressly stated herein, these Terms do not grant you any rights to, under or in, any Intellectual Property Rights in the Sites, the Portal, the Content and/or the Services.
11.3 You shall not in any way infringe the Intellectual Property Rights of Clustermarket or the other Authorised Users. You shall promptly notify us of any infringement or suspected or threatened infringement of the Platform or the Content (including User Content) that may at any time come to your notice, giving reasonable particulars.
12. CONFIDENTIALITY
12.1 Each Party undertakes that it shall not at any time disclose to any person any Confidential Information of the other Party or of any other Participant, except as permitted by Clause 12.2.
12.2 Each Party may disclose the Confidential Information of the other Party or of any other Participant:
12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party's obligations under these Terms or an Agreement, where applicable. Each Party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party's confidential information comply with this Clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither Party shall use any Confidential Information of the other Party or of any other Authorised User for any purpose other than to perform its obligations under these Terms or an Agreement.
12.4 Each Party shall maintain reasonable security measures to protect Confidential Information of the other Party or of any other Participant against loss, theft or destruction.
12.5 On termination of these Terms or an Agreement, each Party shall return or destroy all Confidential Information of the other Party.
13. LINKS TO AND FROM SITES
13.1 Where the Sites or Portal contains links to other websites and resources provided by third parties, these links are provided for your information only. Such websites and resources may be subject to different terms and conditions and privacy policies. We have no control over the content of those websites or resources and we are not responsible or liable for them in any way.
14. LIMITATION OF OUR LIABILITY
14.1 Nothing in these Terms shall limit or exclude the liability of either Party for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
14.1.2 fraud or fraudulent misrepresentation;
14.1.3 liability under the indemnities contained in Clause 15; or
14.1.4 any matter in respect of which it would be unlawful to exclude or restrict liability.
14.2 Subject to Clause 14.1, we shall not under any circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
14.2.1 any economic loss or other loss of profit, revenue, business, opportunity, or anticipated;
14.2.2 any interruption of use or loss or corruption of data (other than in any case as caused by Clustermarket’s gross negligence);
14.2.3 any loss of goodwill or reputation;
14.2.4 any cost of procuring substitute or replacement goods or services; or
14.2.5 any loss that is an indirect or secondary consequence of any act or omission of Clustermarket.
14.3 Subject to Clauses 14.1 and 14.2, above, our total liability to you in respect of any loss or damage arising under or in connection with this Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
14.3.1 if you are a Customer, the aggregate of Fees that you have paid to Clustermarket in the twelve (12) month period prior to the event giving rise to the liability; or
14.3.2 if you are a Provider, the aggregate of the amounts paid by Clustermarket to you in the twelve (12) month period prior to the event giving rise to the liability; or
14.3.3 if no payments have been made under this Contract, £1,000.
14.4 In respect of any loss of data, our total liability to you shall in no circumstances exceed the damages that would have occurred had you thoroughly saved and backed up your data at least once per week.
15. INDEMNITIES
15.1 You shall indemnify and defend Clustermarket and its subsidiaries, affiliates, officers and employees (the Clustermarket Indemnified Parties) from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable legal fees) incurred by the Clustermarket Indemnified Parties arising out of or in connection with any of the following:
15.1.1 a breach by you of clause 18 (Data Protection and Privacy) of these Terms;
15.1.2 any User Content that you make available on the Portal, including such User Content infringing the Intellectual Property Rights of any other third party; or
15.2.3 any taxes or duties arising from or in connection with the offer, sale or transaction on or through the Marketplace (or the Portal) or the collection, payment or failure to collect or pay such taxes or duties.
16. SETTLEMENT OF DISPUTES
16.1 If you have any queries or complaints relating to the Platform or Services, please contact us using the contact information as detailed in Clause 1.5. We will use reasonable efforts to respond to you promptly.
16.2 In the event of any dispute between Clustermarket and the Customer, the Parties shall first attempt to resolve the dispute through friendly consultations (acting reasonably and in good faith). In the event that no resolution satisfactory to both Parties is reached within sixty (60) days after commencement of such consultation, either Party is entitled to commence legal proceedings.
17. GENERAL
17.1 These Terms do not create or infer any rights that are enforceable by any person who is not a Party to them.
17.2 We may transfer our rights and obligations under these Terms to another organisation, but this will not affect your rights or our obligations under these Terms. You may only transfer your rights or obligations under these Terms to another person if we agree in writing.
17.3 If either party decides not to exercise or enforce any right that it may have against the other at a particular time, then this does not prevent that party from later deciding to exercise or enforce that right.
17.4 If any court or competent authority decides that any of these Terms are unlawful or unenforceable, the remaining terms and conditions will remain in full force and effect.
17.5 These Terms (and any dispute or claim, whether contractual or non-contractual) relating to it or its subject matter) arising out of them shall be governed by and construed in accordance with English law and the non-exclusive jurisdiction of the English Courts.
17.6 All notices will be sent by e-mail or will be posted on the Portal or by any other means then specified by Clustermarket. Clustermarket will send notices to you at the e-mail address maintained in the records for your Account. You hereby agree to monitor your e-mail messages frequently to ensure awareness of any notices sent by Clustermarket. This clause 17.6 does not apply to the service of any proceedings or documents in any legal action.
17.7 The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.8 In the event of any conflict between any Quote and the remainder of these Terms, the Quote shall take priority and prevail.
17.9 Clustermarket shall have no liability under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Clustermarket notifies you of any such event and its expected duration.
18. DATA PROTECTION AND PRIVACY
18.1 Any personal information that we collect from you as you browse and use the Sites, or if you are using our Platform or Services as a Customer or Authorised User in your individual capacity, will be used in accordance with our Privacy Policy. To find out more about the data we collect from you and how we use it please read our Privacy Policy available here: https://www.clustermarket.com/privacy-policy.
18.2 In this clause 18, the terms ‘personal data’, 'data controller', ‘data processor’ 'data subject', ‘process/processed/processing’ and 'personal data breach' shall have the meanings given under DP Law.
18.3 Both Parties will comply with all applicable provisions of DP Law in their performance of their obligations and exercise of their rights under these Terms.
18.4 The Parties acknowledge and agree that, where both parties are organisations, for the purposes of DP Law, the Customer is the data controller and Clustermarket is a data processor in respect of any User Personal Data processed by Clustermarket for the purposes of exercising its right and performing its obligations under these Terms, except in respect of Clustermarket’s use of any User Personal Data for Clustermarket’s business, operational or administrative purposes other than the provision of the Services or Platform, in which case Clustermarket shall act as a data controller.
18.5 Where you transfer personal data to Clustermarket in connection with these Terms and/or the Portal, you shall ensure that you have all necessary rights and consents (where applicable) to do so, and that all necessary notices have been provided to the relevant data subjects.
18.6 Clustermarket shall, in relation to any personal data processed by it as a Data Processor in connection with its performance of its obligations under these Terms:
18.6.1 process that personal data only on your documented written instructions (which include, for the avoidance of doubt, the performance of these Terms and any instructions specified in the Quote) unless Clustermarket is required by Applicable Law to otherwise process that personal data. Where Clustermarket is otherwise required to process the personal data in accordance with Applicable Law , Clustermarket shall promptly notify you of this before performing the processing required by the Applicable Law unless Applicable Law prohibits Clustermarket from so notifying you;
18.6.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
18.6.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
18.6.4 not transfer any personal data outside of the United Kingdom or European Economic Area unless the following conditions are fulfilled:
a) you or Clustermarket has provided appropriate safeguards in relation to the transfer;
b) the data subject has enforceable rights and effective legal remedies; and
c) Clustermarket complies with its obligations under DP Law by providing an adequate level of protection to any personal data that is transferred.
18.6.5 assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under DP Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
18.6.6 notify you without undue delay on becoming aware of a personal data breach;
18.6.7. at your written direction, delete or return personal data and copies thereof to you on termination of these Terms unless required by Applicable Law to store the personal data; and
18.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 18.6, and, at your expense, allow for and contribute to audits, including inspections, conducted by you or your representative(s).
18.7 You consent to Clustermarket:
18.7.1 appointing third-party processors of personal data under these Terms. Clustermarket confirms that it has entered or (as the case may be) will enter into with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in Clauses 18.6 and 18.7 and in either case which will reflect the requirements of DP Law. As between you and Clustermarket, Clustermarket shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Clause 18.7.1; and
18.7.2 transferring personal data outside of the United Kingdom or European Economic Area, providing the conditions in clause 18.6.4 are fulfilled.
Schedule 1
DEFINITIONS AND INTERPRETATIONS
1.1 The following definitions and rules of interpretation apply in these Terms:
Acceptance has the meaning set out in paragraph 3.7 of Schedule 2;
Account has the meaning set out in Clause 2.1;
Additional Fees has the meaning set out in paragraph 6.1.3 of Schedule 2;
Additional Payment Option has the meaning set out in paragraph 7.6 of Schedule 2;
Agreement means an agreement entered into between a Provider and a Customer through the Portal for the use of Resources made available on the Marketplace;
Applicable Law means all statutes, legislation, directives, statutory instruments, laws and regulations applicable to the Parties, Platform or Services;
Authorised User means an end-user of the Platform who is authorised to access the Platform or Services;
Background Intellectual Property means all Intellectual Property Rights owned, created or developed outside of the course of the provision of the Resources
Core Subscription means access to the baseline features and functionality of the Platform
Core Subscription Fee means the fee payable by the Customer in consideration of the Core Subscription as detailed on our website;
Booking Request means a request by a Participant to use the Resources in a Listing by completing the booking form on the Portal;
Business Day any day other than a Saturday, Sunday, or bank or public holiday, when banks are open for business in London
Clustermarket Indemnified Parties has the meaning set out in Clause 15.1;
Clustermarket Service Fee has the meaning set out in paragraph 6.1.2 of Schedule 2;
Confidential Information all information which is marked as or has been otherwise indicated to be confidential or which would be regarded as confidential by a reasonable business person, save to the extent that such information:
(i) is already in the public domain at the time of disclosure; or
(ii) enters the public domain other than by a breach of any obligation of confidentiality.
Without limiting the foregoing, such confidential information shall include:
(i) business secrets and know-how;
(ii) all documentation, materials, drawings, data and articles provided through or in connection with the Portal or in the course of the initiation, conclusion and performance of these Terms;
(iii) technical information, including technology plans, standards of technology, records of research and development, technology reports, inspection reports, experimental data, experimental outcomes, computer software, databases, blueprints, samples, models, operation manuals, technology files and relevant correspondence;
(iv) operational information, including list of providers, list of sales merchants and customers, marketing strategies, sales schedules, costs, prices, marketing data and procurement data;
(v) financial information, including documents of banking accounts, reckonings, bills, financial statements, accounting books, accounting certificates, credit certificates, taxation certificates, financial reports, budget statements, balance conditions, credit conditions, audit reports and financial documents.
Commencement Date means the date when Clustermarket will begin to provide the Customer with the Services:
1) for the Core Subscription the day of purchase;
or 2) for the Enterprise Subscription or Premium Subscription the date specified in the Quote or where no date is specified, the date on which the Services are first made available to the Customer
Content means text, graphics, images, software, audio, video, information or other material or content uploaded to, displayed on or exchanged through the Portal, whether by posting, uploading, publishing, messaging, submitting, transmitting or otherwise
Customer has the meaning given to in clause 1.3;
DP Law means the UK GDPR; any implementing laws (including, without limitation, the Data Protection Act 2018 (“DPA”)), regulations and secondary legislation under the UK GDPR (as amended or updated from time to time) applicable in England and Wales; and any successor legislation to the UK GDPR or DPA applicable in England and Wales (as amended or updated from time to time);
Enterprise Subscription Fees means the fees payable by an Enterprise Customer for the Services, as set out in the Quote
Enterprise Customer means a Customer who has subscribed to the Enterprise Subscription
Enterprise Subscription means access to the enterprise Services as specified in the service description available on our website and as specified in the Quote
Equipment means the equipment being offered for Provision via a Listing
Foreground Intellectual Property means all Intellectual Property Rights created or developed by a Provider during the course of the provision of the Resources;
Initial Service Term means:
1) one year from the Commencement Date for the Subscriptions purchased directly through the website; or
2) the period set out in the Quote for the Enterprise Subscription or Premium Subscription, where applicable;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, utility models, trade marks and service marks, business names and domain names, rights in get-up and trade dress, prototypes, techniques, drawings, patterns, techniques, computer programs, source codes, goodwill, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered, unregistered or the subject of a pending application and all applications and rights to apply for and be granted, renewals, revivals, reversions, divisions or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now, or may subsist in the future, in any part of the world;
Laboratory means a laboratory being offered, wholly or partly, by a Provider for Provision via a Listing
Listing has the meaning set out in paragraph 4.1 of Schedule 2;
Marketplace means the online marketplace which provides users with access to instruments and services from scientific organisations via the Platform;
Marketplace Fees has the meaning set out in Clause 9.1;
Minimum Number of Authorised Users means the minimum of Authorised Users as specified by Clustermarket at its discretion from time to time;
Participant means Customer or Authorised User (as applicable) of the Platform who uses the Marketplace;
Premium Subscription means the Premium-Academia Subscription and the Premium-Industry Subscription;
Premium-Academia Subscription means access to the premium Services by an academic institution as specified in the Quote;
Premium-Academia Subscription Fee means the fees payable in respect of the Premium-Academia Subscription;
Premium-Industry Subscription means access to the premium Services by an commercial organisation as specified in the Quote;
Premium-Industry Subscription Fee means the fees payable in respect of the Premium- Industry Subscription;
Premium Subscription Fee(s) means the Premium-Academia Subscription Fee and/or the Premium-Industry Subscription Fee;
Provide/Provision means the making available of Resources by a Provider via the Marketplace for time limited use in the booked hours or expected date of completion on the premises of the Provider;
Provider means a Participant who makes Resources available on the Marketplace from time to time;
Provider Fee has the meaning set out in paragraph 6.1.1 of Schedule 2;
Quote means any Clustermarket SaaS quote provided to a Customer by Clustermarket;
Renewal Term has the meaning given to it in clause 7.3.1;
Resources means the Equipment, Laboratory and/or Technical Services (as applicable);
SaaS Services has the meaning set out in Clause 1.2;
Services means the subscription services provided through the Platform, including the SaaS Services and Marketplace;
Subscription means the Core Subscription, Premium Subscription, or Enterprise Subscription;
Subscription Fees means the fees payable in consideration of the Services, including the Core Subscription Fee, Premium Subscription Fee or Enterprise Subscription Fee as applicable;
Technical Services means scientific and technological services, either standard or customised, being offered by a Provider via a Listing;
Trial Period means 14 days from the date of that you create an Account, or such other period as agreed by Clustermarket;
Trial Services means the Services provided during the Trial Period;
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018; and
User Content has the meaning given to it in clause 8.1;
User Personal Data means any personal data (as defined in Clause 18.2) processed through the Services or Platform in accordance with this Contract.
1.2 Person. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Amendments to statutes. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4 Subordinate legislation. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.5 Writing. A reference to writing or written includes e-mail and notification via the functionality provided on the Portal.
1.6 Including. 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.
1.7 Clauses. References to Clauses are to the clauses of these Terms.
1.8 Quote. If you have received a Quote, the terms set out in the Quote are subject to these Terms (unless otherwise stated therein).
Schedule 2
MARKETPLACE TERMS
The Terms set out in this Schedule 2 apply only to Customers who use the Marketplace. Any such Terms should be read as to the extent they are applicable, and if they are not applicable to you, they will have no effect.
1. USE AND SCOPE OF THE MARKETPLACE
1.1 As part of the Portal, we provide a Marketplace that enables Providers to publish Resources that they are prepared to Provide on the Marketplace (Listings) and to communicate and transact directly with Customers who are seeking to use such Resources.
1.2 As the provider of the Marketplace, Clustermarket does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Resources. Providers alone are responsible for their Listings and Resources. When Participants make or accept a Booking Request, they will be required to enter into an Agreement directly with each other. Clustermarket is not and does not become a party to any contractual relationship between Participants or Customers and Providers, including the Agreements.
1.3 Except as set out in paragraph 7 (Payment), Clustermarket is not acting as an agent in any capacity for any Participant or Provider. If you are a Provider, your relationship with Clustermarket is limited to being an independent, third-party contractor, and not an employee, agent, joint venture partner or partner of Clustermarket for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Clustermarket.
1.4 While we may help to resolve disputes in accordance with these Terms, Clustermarket has no control over and does not guarantee (i) the quality, safety, suitability, or legality of any Listings or Resources, (ii) the accuracy, timeliness, completeness or truth of any Listing descriptions or Content on the Marketplace, or (iii) the performance or conduct of any Participant or third party. Clustermarket does not endorse any Participant, Listing or Resources. You should always exercise due diligence and care when deciding whether to use any Resources, accept a request to Provide any Resources, or communicate and interact with other Participants.
2. COMMITMENT AND IMPROPER USE
2.1 You must not use (nor advocate, encourage or assist any third party to use) the Marketplace, Platform or Services to find or transact, interact or otherwise deal with another Participant with the intention of entering into an arrangement to use or Provide the Resources in such a way as to be independent of the Marketplace and therefore circumvent the obligation to pay the Clustermarket Service Fee. In such cases, Clustermarket is entitled to immediately terminate your Account and claim the Clustermarket Service Fee on such transactions under the same conditions as if the relevant transaction(s) were concluded through the Portal, for which the involved Participants shall bear joint liability.
2.2 It is not the intention of Clustermarket to prevent Participants from using the Portal to enter into long-term research collaborations. If you intend to enter into such a collaboration, please contact us and we will confirm whether this would be caught by paragraph 2.1 and the applicable Clustermarket Service Fee.
3. MARKETPLACE TERMS FOR PROVIDERS
3.1 If you are using the Marketplace as a Provider, you may publish a Listing on the Portal to be viewed by other Participants.
3.2 A Listing for Equipment or Laboratory must include the following information:
3.2.1 the name of the Laboratory and/or Equipment (or available equipment and devices in the Laboratory), including its technical specification and features;
3.2.2 the location (a valid physical address is required);
3.2.3 the availability;
3.2.4 the pricing;
3.2.5 any ancillary services, guidance or support available for the Laboratory and/or Equipment, clearly specifying whether additional costs apply for such services and, if so, the pricing and payment methods;
3.2.6 any related rules, restrictions and conditions, for example rental conditions, house rules for the premises at which the Equipment and/or Laboratory is located; and
3.2.7 any other information that Clustermarket may request from time to time.
3.3 A Listing for Technical Services may include the following information:
3.3.1 a description of the Technical Services available;
3.3.2 the location (a valid physical address is required);
3.3.3 the availability;
3.3.4 a price range for the Technical Services (if necessary);
3.3.5 any related rules, restrictions and conditions, for example rental conditions, house rules for the premises at which the Technical Services will be undertaken; and
3.3.6 any other information that Clustermarket may request from time to time.
3.4 You may not publish Listings for any Resources that:
3.4.1 are not used within the science or technology sectors;
3.4.2 are prohibited by law;
3.4.3 you do not have the legal authority to Provide; or
3.4.4. otherwise breach these Terms or Applicable Law.
3.5 You shall be solely responsible for providing complete and accurate information about your Resources, keeping your profile and Listings up-to-date at all times and for setting a price or price range for your Listings.
3.6 Upon receiving a Booking Request, you may approve or amend the Booking Request by using the functionality enabled on the Portal to send the Participant the terms and conditions of the Provision, including the booking schedule, a binding quote for the required Technical Services (where applicable), any other details agreed between yourself and the Participant (for example the relevant requirements and specifications of performance) (the Agreement). You may also elect to share a contract with the Participant, which shall form part of the Agreement.
3.7 The Customer may accept the Agreement by using the functionality enabled on the Portal (Acceptance). Following Acceptance, the Customer shall make the payment to Clustermarket pursuant to paragraphs 6 and 7 of this Schedule 2. You may withdraw an offer without penalty or liability at any time prior to Acceptance. However, you acknowledge and agree that Clustermarket may, at its discretion, publish a negative review on your Listing if you cancel an Agreement after Acceptance. You shall be given the opportunity to explain the reasons for such cancellation.
3.8 When you accept a Booking Request and enter into an Agreement with the Customer, you are legally bound to provide your Resources to the Customer as described in your Listing when the Booking Request was made and on the terms and conditions of the Agreement.
4. MARKETPLACE TERMS FOR PARTICIPANTS
4.1 You agree that a Listing on the Marketplace shall be deemed to be an ‘invitation to treat’ only, which merely invites you to make an offer or to enter into negotiations with the Provider and does not, of and in itself, indicate the Provider's intention of being contractually bound.
4.2 The Portal allows you to submit a Booking Request which includes the following information: date, time, duration of use and specific requirements. If you are requesting Technical Services that are subject to a flexible rate or an individualised charge, you may provide a description of the Technical Services you require and request a quote from the Provider.
4.3 Please check that the details in your Booking Request are complete and accurate before submission. If you think that there is a mistake or require any changes prior to submission, please cancel the Booking Request and submit a new request.
4.4 Your submission of your Booking Request on the Portal constitutes your offer to the Provider to purchase or use (as applicable) the requested Resources. By submitting the Booking Request, you confirm you are willing and entitled to enter into a contractual relationship with the Provider.
4.5 Once you have submitted your Booking Request you will receive an email acknowledgement of receipt from Clustermarket. This does not mean that the Provider has accepted your offer. Following acknowledgement of receipt of your offer, the Provider may contact you requesting further clarification of your requirements for the Resources. Such contact shall not constitute acceptance of your offer by the Provider, nor shall it constitute a counter-offer from the Provider.
4.6 The Provider may approve, amend or reject your Booking Request using the functionality enabled on the Portal. If the Provider wishes to accept or amend your Booking Request, the Provider will send you the Agreement. You may accept the Agreement by using the functionality enabled on the Portal and on Acceptance of the Agreement shall become effective and binding upon you and the Provider. On Acceptance, the payment of the Marketplace Fees shall become due and payable by you in accordance with this Schedule 2.
4.7 If you require any changes following Acceptance, please contact the relevant Provider to discuss. The Provider will confirm any agreed changes in writing to avoid any confusion between you and the Provider.
5. PRINCIPLES FOR MARKETPLACE AGREEMENTS
5.1 While Clustermarket is not a party to the contractual relationship between the Provider and the Customer in respect of each parties use of the Marketplace, we require that Participants adhere to the principles set out below when entering into Agreements. If Participants do not expressly include these Principles in their Agreements, these Principles shall be deemed automatically incorporated into the relevant Agreement. These principles are intended to foster collaboration between the Provider and the Participant and to establish contractual relations that are in line with common industry practices. Failure to follow these Principles may result in us cancelling your Account immediately.
5.1.1 Commencement of Provision. Provider must specify to the Participant and Clustermarket whether the Provision will commence (i) prior to receipt of the Marketplace Fees by Clustermarket or (ii) only on receipt of the Marketplace Fees by Clustermarket.
5.1.2 No Guarantee. The Provider does not undertake that any Provision will lead to any particular result. Accordingly, the Provider makes no representation or warranty of any kind in relation to, nor accepts responsibility for, any results or liability arising from any Provision.
5.1.3 Intellectual Property Rights. The Agreement shall not affect either the Participant’s title to its Background Intellectual Property or the Provider’s title to its Background Intellectual Property. The Provider shall disclose and assign any Foreground Intellectual Property to the Participant pursuant to the Agreement, subject to the Participant complying with terms and conditions of the Agreement (including payment).
5.1.4 Confidentiality. The Provider and the Participant shall keep all Confidential Information belonging to the other confidential and shall not use or disclose such Confidential Information, other than as provided for in the Agreement or otherwise agreed from time to time.
5.1.5 Illegal Work. The Provider and the Participant shall apply with Applicable Law and shall not use the Platform or any Provision for any illegal or immoral purpose.
5.1.6 Refund and Cancellation Policy. The cancellation provisions set out in paragraph 8 of this Schedule 2 below shall be deemed incorporated into the Agreement and the Provider must inform the Participant of its refunds and cancellation policy (provided always that such policy is subject is to the cancellation provisions set out in Clause 8.2).
5.2 These principles are not a substitute for legal advice and Clustermarket recommends that each Provider and Participant obtains legal advice prior to entering into an Agreement. Clustermarket expressly disclaims any liability relating to use or reliance on these principles.
6. CALCULATION OF MARKETPLACE FEES
6.1 Unless otherwise agreed with Clustermarket in writing, Clustermarket shall request payment from the Participant for the following fees:
6.1.1 the fee charged by the Provider for Provision of the Resources in accordance with the Listing or as otherwise agreed between the Participant or Provider in the Agreement (Provider Fee);
6.1.2 a fee charged by Clustermarket in consideration for the use of the Marketplace (Clustermarket Service Fee), which shall be up to 10% of the Provider Fee (as determined by Clustermarket in its sole discretion); and
6.1.3 where applicable and if required by the Provider to be charged separately, any shipping costs and applicable taxes in connection with the performance of the Agreement (Additional Fees).
(collectively, the Marketplace Fees).
6.2 The Participant may only pay the Marketplace Fees using the methods of payment displayed on the payment page, no other methods of payment will be accepted. Marketplace Fees must be made in the currency specified by the Provider in the Listing, which may be either Great British pounds (GBP), United States dollars (USD) or Euros (EUR), or such other currency as Clustermarket in its sole discretion may accept from time to time. Any costs arising from the remittance of the Marketplace Fees by the Participant to Clustermarket, including the bank charges, shall be borne by the Participant.
6.3 All Marketplace Fees are exclusive of VAT.
7. PAYMENT OF MARKETPLACE FEES
7.1 The Marketplace Fees and any applicable VAT shall become due and payable by the Participant upon Acceptance. Unless otherwise agreed with Clustermarket in writing, the Participant shall pay the Marketplace Fees to Clustermarket either:
7.1.1 immediately, if the Participant has chosen credit card as the payment method; or
7.1.2 within three Business Days of the date on which Acceptance occurred, if the Participant has chosen bank transfer as the payment method.
7.2 The Provider authorises Clustermarket to act on its behalf for the purpose of receiving and holding Provider Fees and, where applicable, the Additional Fees and remitting such monies to the Provider in accordance with paragraphs 7.4 and 7.6 below. Clustermarket is entitled to retain the Clustermarket Service Fee.
7.3 Clustermarket may appoint a third-party online payment processor at its sole option from time to time. A reference to a payment to or from Clustermarket under these Terms shall be deemed to include a payment to or from Clustermarket’s appointed payment processor on Clustermarket’s behalf.
7.4 Once Clustermarket has received the Marketplace Fees from the Participant, Clustermarket shall notify the Provider. Unless otherwise agreed between Clustermarket and the Provider in writing and subject to paragraphs 7.6 and 7.7, Clustermarket shall transfer the Provider Fee, and, where applicable, the Additional Fees and any applicable VAT, to the bank account registered to the Provider’s account promptly upon the Provider has marked the Provision as ‘Completed’ on the Platform, provided always that Clustermarket has received the Marketplace Fees from the Participant and the Provider has sent Clustermarket a valid invoice. If Clustermarket has not received the Marketplace Fees prior to the Provision being completed, Clustermarket shall pay the amount due to the Provider within three (3) Business Days of receipt of the Marketplace Fees from the Participant.
7.5 In the event that the Provider does not confirm via the Portal that the Provision has been completed, Clustermarket shall refund to the Participant the Provider Fee, and, where applicable, the Additional Fees and any applicable VAT on the later of ninety (90) days from (i) the date of Acceptance or (ii) the last date of the Provision as notified on the Portal.
7.6 The Provider and the Participant may agree that the Provider requires one of the following additional payment options set out below (subject always to Clause 10.7) in respect of each Provision:
7.6.1 Clustermarket will release a proportion of the Marketplace Fees (excluding the Clustermarket Service Fee) to the Provider prior to the Provision having been completed (for example for reagents that are specifically bought for the Provision and wouldn't have been bought otherwise);
7.6.2 Clustermarket will release a proportion of the Marketplace Fees (excluding the Clustermarket Service Fee) to the Provider on certain pre-agreed milestones (for example when certain milestones have been completed before the entire Provision has been completed); or
7.6.3 Clustermarket will release a proportion of the Marketplace Fees (excluding the Clustermarket Service Fee) to the Provider on a monthly basis (for example for projects that continue over several months),
(each an Additional Payment Option). The Provider must include any applicable Additional Payment Option in the quote it provides for the Participant and inform Clustermarket in writing of any agreed Additional Payment Option.
7.7 Clustermarket’s obligation to remit funds to the Provider in accordance with Clauses 7.4 and 7.6 is limited to the funds that Clustermarket has actually received from the relevant Participant, less amounts owed to Clustermarket (including the Clustermarket Service Fee), and may be subject to chargeback or reversal in accordance with Section 8. In case of payment by bank transfer, the payment obligation of Clustermarket is discharged on remittance by Clustermarket and not receipt by the Provider.
7.8 It is the Provider's responsibility to determine whether and what taxes and duties (including VAT) apply to the transactions set out in this section 7 and to collect, report, and remit the correct taxes and duties to the appropriate tax authority. Clustermarket is not obligated to determine whether any taxes or duties apply to such transactions and is not responsible for collecting, reporting, or remitting any taxes or duties arising from or in connection with the transactions made through the Portal.
7.9 Clustermarket will inform the Provider and the Participant of each completed payment via the Portal.
7.10 Any money held by Clustermarket on behalf of a Participant will not attract interest whilst being held.
General
7.11 In order to comply with Applicable Laws, Clustermarket reserves the right to make due diligence enquiries and/or implement further controls and monitoring systems with respect to financial transactions and Participants.
8. CANCELLATION
8.1 Subject to paragraphs 8.2 and 8.3, the extent to which either a Provider or a Participant can cancel an Agreement, and the consequences of such cancellation (for example whether the Participant is entitled to a refund of Provider Fees), shall be regulated by the Agreement or by the refund and cancellation policy published by the Provider on the Portal (in the event of a conflict, these Terms shall prevail).
8.2 the following terms apply to cancellation of an Agreement:
8.2.1 if the Provider cancels the Agreement (other than due to the Participant’s breach of the Agreement), Clustermarket shall refund the Marketplace Fees collected to the Customer;
8.2.2 if the Participant cancels the Agreement:
(a) the Clustermarket Service Fee is non-refundable and non-transferable except as expressly agreed by Clustermarket; and
(b) the Marketplace Fees less the Clustermarket Service Fee will only be refunded to the Participant if the Provider confirms that the Agreement has been cancelled and the Participant is entitled to a refund pursuant to the Agreement, and such amount shall be less the amounts incurred by Clustermarket to process the transfer (for example foreign exchange and bank transfer fees).
In all cases, Clustermarket shall neither be obligated to provide nor be liable for any refund or credits for its own account.
8.3 If a Provider cancels an Agreement pursuant to paragraph 8.2.1, the Provider expressly agrees and acknowledges that Clustermarket may apply consequences to its Listing, including:
8.3.1 publishing a negative review on the Listing indicating that a booking was cancelled without cause; and
8.3.2 keeping the calendar for the Listing unavailable or blocked for the date(s) of the cancelled booking.
9. TERM AND TERMINATION
9.1 If this Contract is terminated in accordance with Clause 7.2, and if the Customer is a Marketplace user, and any Agreements are pending or any Provisions are incomplete at the date of termination, the Marketplace Fees will be pro-rated in Clustermarket’s sole discretion.
9.1.1 On termination of your Account pursuant to Clause 7.4, all pending and confirmed Agreements shall automatically be cancelled and:
9.1.2 if you are a Provider, Clustermarket may, in its sole discretion (but shall not be obliged to), refund the Marketplace Fees (whether in whole or in part) of any partially-performed or incomplete Provisions to your Participant; or
9.1.3 if you are a Participant, you will not be entitled to a refund of the Marketplace Fees or any other compensation and the Marketplace Fees will be remitted as if the Agreement had been performed to compensate for the loss of the booking.
10. MARKETPLACE CONTENT
10.1 You hereby acknowledge and agree that any Content that you post on the Marketplace can be seen by registered users of the Portal. Limited information may also be visible to unregistered users. If you choose to grant any other Participants, users or other third parties access to your business secrets, know-how or any other confidential information through the Marketplace (or Portal), for example through communications with other Participants, users or third parties, you do so at your own risk.
10.2 Unless otherwise agreed with Clustermarket by way of a separate agreement, you are not authorised to post Content on the Marketplace which contains advertisements, contacts or links to external websites or resources or which solicits any other user, Customer or Participant to enter into a business contract or transaction outside of the Portal. You may enter into a separate agreement with Clustermarket in order to place paid advertisements on the Portal. In case of unauthorised advertisements, Clustermarket is entitled to delete such items without notice and/or terminate or suspend your Account at its discretion.
10.3 Clustermarket reserves the right, without prior notice, to edit, suspend or remove any Listing that Clustermarket considers in its sole discretion to be in breach of these Terms or Applicable Law or which may otherwise be harmful or objectionable to Clustermarket or its users.
10.4 You shall not make any copies or authorise any copying of any material supplied by Clustermarket or another Participant in the course of contract negotiation or performance, including product designs, diagrams, circuitry, hardware, software programs and operating manuals, except with the prior written consent of the legal owner of such material.
11. LIABILITY
11.1 As Clustermarket is not a party to an Agreement between a Provider and Participant, nor to any other dealings or business between a Provider and Customer, you hereby release Clustermarket from any claim, demand, damages and liabilities arising out of or in connection with an Agreement or a dispute with another Participant (excluding those obligations and liabilities explicitly assumed by Clustermarket pursuant to these Terms). For the avoidance of doubt, Clustermarket is not liable for any loss or damage caused by any Participant.
11.2 Any disputes arising from or in connection with the Agreements between Providers and Participants, or any other dealings or business between/among the Participants using the Marketplace or Portal, shall be settled directly and exclusively between/among the relevant Participants and Clustermarket shall have no liability for them. In the event of any breach, dispute, claim, question or other disagreement between Participants, you hereby agree to use your best efforts to consult and negotiate in good faith to reach a solution satisfactory to all parties. If you enter into a dispute and/or reach a solution with another Participant, you shall promptly notify Clustermarket in writing or by using features available on the Portal.