1.1 Clustermarket Limited, with registered no. 09485659 and registered address at Unit 326 Canalot Studios, 222 Kensal Road, London, England, W10 5BN (Clustermarket, we, us or our) owns and operates the websites (https://www.clustermarket.com/ and https://www.bookkit.org) (the Sites), and the Clustermarket online portal available on the Sites (https://app.clustermarket.com/) (the Portal) which enables providers of scientific and technical resources, such as laboratory facilities, equipment and services, to connect and contract directly with customers who wish to make use of such resources for scientific or technological research, experiments and measurements (the Sites and the Portal together being the Platform).
1.2 Your use of the Platform will be governed by these terms and conditions (the Terms) and any other documents referred to in these Terms, which will form a legal contract between us and you. The terms you or your, when used in these Terms, refer to you as a user of the Platform. You and we are each a Party to these Terms, and together are referred to as the Parties.
1.3 By browsing or using the Sites, and/or by registering for an account to use the Portal, you are agreeing to be legally bound by these Terms.
1.4 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: No 1 Poultry, London, England, EC2R 8EJ
1.5 Your use of the Platform will be subject to the most recent version of the Terms available on the Platform.
1.6 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 (i) post the revised Terms on the Platform and update the “Last Updated” date below, and (ii) if you are a Participant (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 will be required to scroll-through and 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.
1.7 These Terms were last updated on 25 November 2020.
2. DEFINITIONS AND INTERPRETATIONS
2.1 When the following words with capital letters are used in these Terms, this is what they will mean:
"Acceptance" has the meaning set out in Clause 6.7;
"Account" has the meaning set out in Clause 3.1;
"Additional Fees" has the meaning set out in Clause 9.1.3;
"Additional Payment Option" has the meaning set out in Clause 10.6;
"Agreement" means an agreement entered into between a Provider and a Customer through the Portal for the use of Resources;
"Applicable Law" means all applicable statutes, legislation, directives, statutory instruments, laws and regulations;
"Background Intellectual Property" means all Intellectual Property Rights owned, created or developed outside of the course of the provision of the Resources;
"Booking Request" means a request by a Customer 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 20.1;
"Clustermarket Service Fee" has the meaning set out in Clause 9.1.2;
"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 an Enterprise Provider with the Services, as set out in an Order Form;
"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" means a Participant who requests and uses Resources from a Provider from time to time via the Portal;
"DP Law" means the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) for as long as it is applicable in England and Wales; any implementing laws (including, without limitation, the Data Protection Act 2018 (“DPA”)), regulations and secondary legislation under the GDPR (as amended or updated from time to time) applicable in England and Wales; and any successor legislation to the GDPR or DPA applicable in England and Wales (as amended or updated from time to time);
“Enterprise Fees” means the fees payable by an Enterprise Provider for the Services, as set out in an Order Form;
“Enterprise Provider” means a Provider who has subscribed to a Clustermarket ‘Industry Plus’ or ‘Academia Plus’ Account and entered into an Order Form for Services;
"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 the period set out in the Order Form;
"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 Clause 4.1;
"Marketplace Fees" has the meaning set out in Clause 9.1;
“Order Form” means any Clustermarket SaaS Order Form entered into between an Enterprise Provider and Clustermarket;
"Participant" means a user of the Portal who has completed an account registration and by doing so has consented to these Terms;
"Participant Content" has the meaning set out in Clause 13.1;
"Provide/Provision" means the making available of Resources by a Provider to a Customer (whether for use by the Customer itself, or by the Provider on behalf of the Customer as agreed) via the Portal 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 available Resources through the Portal from time to time;
"Provider Fee" has the meaning set out in Clause 9.1.1;
"Resources" means the Equipment, Laboratory and/or Technical Services (as applicable) made available by Providers through the Portal;
“Services” means the services associated with an ‘Industry Plus’ or ‘Academia Plus’ Account, as set out in an Order Form, and which may include on-boarding, user set-up and user support;
"Technical Services" means scientific and technological services, either standard or customized, being offered by a Provider via a Listing; and
“User Personal Data” means any personal data (as defined in Clause 23.2) provided to Clustermarket by you or on your behalf.
2.2 The following definitions and rules of interpretation apply in these Terms.
2.2.1 Person. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.2.2 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.
2.2.3 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.
2.2.4 Writing. A reference to writing or written includes e-mail and notification via the functionality provided on the Portal.
2.2.5 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.
2.2.6 Clauses. References to Clauses are to the clauses of these Terms.
2.2.7 Order Form. If you have entered into an Order Form, the terms of the Order Form are incorporated into these Terms.
2.2.8 Enterprise Providers. Certain of these Terms apply only to Enterprise Providers (but not to any other Participants). These include references to Order Forms, Services, and Enterprise Fees. 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.
3. REGISTRATION ON THE PLATFORM
3.1 To access and use certain features of the Platform, including the Portal, you will need to register for an account (Account). To register for an Account, you must be a legal entity or natural person in the science or technology sectors (for example a company, university or a charity). 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 European Union or if you are a public authority or a public body.
3.2 To register for an account, you will be required to complete an Account registration form, which includes without limitation the following information: company name, contact person, email address, telephone number and a profile. The Account registration form should be completed by a duly authorized representative and, if requested by Clustermarket, proof of such authority to sign must be provided without delay. You agree that you will provide accurate, current and complete information about yourself and that you will provide any further information reasonably required by Clustermarket as part of the Account registration process.
3.3 Clustermarket may reject any Account registration at its sole discretion and without giving reasons.
3.4 On acceptance of your Account registration, Clustermarket will send you an email notification and provide you with an Account (which will either be a main account or a sub-account as applicable), and you shall be deemed a Participant for the purpose of these Terms. A Participant may be a Provider or a Customer, or both a Provider and a Customer concurrently.
3.5 If you are an Enterprise Provider, you will need to complete an Order Form before you can use the Portal.
3.5 Your Account is not transferable. You agree to not share your Account password with any third party and to keep your Account and your Account password confidential and secure. You must notify us of any actual or suspected unauthorized 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 unauthorized use of your Account.
4. SCOPE OF THE PLATFORM
4.1 The Portal is an online marketplace that enables Providers to publish Resources that they are prepared to Provide on the Portal (Listings) and to communicate and transact directly with Customers who are seeking to use such Resources.
4.2 As the provider of the Portal, 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, including the Agreements.
4.3 Except as set out in Clause 10 (Payment), Clustermarket is not acting as an agent in any capacity for any Participant. If you use the Portal as 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.
4.4 While we may help to resolve disputes in accordance with Clause 21, 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 Participant Content, 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.
4.5 We will use reasonable endeavors to provide the Platform and to provide the 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 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.
4.6 We shall, at any time, be entitled to modify the Platform without notice to you, including by making new services and functionality available to Participants or by removing or suspending existing services and functionality.
5. COMMITMENT AND IMPROPER USE
5.1 You must not use (nor advocate, encourage or assist any third party to use) the Platform 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 Platform 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. 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 this Clause 5.1 and the applicable Clustermarket Service Fee.
5.2 You must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or any other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. You must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Platform will cease immediately.
5.3 You must not engage in any activity which may disrupt the smooth operation of the Platform.
5.4 You must inform us if you become aware of, or have reasonable grounds to suspect any illegal or otherwise abusive use of the Platform.
5.5 You must not:
5.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under these Terms:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
5.5.2 access all or any part of the Platform or use any of the Services (if applicable) in order to build a product or service which competes with the Platform and/or the Services; or
5.5.3 use the Platform and/or the Services to provide services to third parties; or
5.5.4 subject to clause 22.2, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Services available to any third party; or
5.5.5 attempt to obtain, or assist third parties in obtaining, access to the Platform and/or the Services.
5.6 You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Platform and the Services and, in the event of any such unauthorized access or use, promptly notify Clustermarket.
6. TERMS FOR PROVIDERS
6.1 If you are using the Portal as a Provider, you may publish a Listing on the Portal to be viewed by other Participants.
6.2 A Listing for Equipment or Laboratory must include the following information:
6.2.1 the name of the Laboratory and/or Equipment (or available equipment and devices in the Laboratory), including its technical specification and features;
6.2.2 the location (a valid physical address is required);
6.2.3 the availability;
6.2.4 the pricing;
6.2.5 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;
6.2.6 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
6.2.7 any other information that Clustermarket may request from time to time.
6.3 A Listing for Technical Services may include the following information:
6.3.1 a description of the Technical Services available;
6.3.2 the location (a valid physical address is required);
6.3.3 the availability;
6.3.4 a price range for the Technical Services (if necessary);
6.3.5 any related rules, restrictions and conditions, for example rental conditions, house rules for the premises at which the Technical Services will be undertaken; and
6.3.6 any other information that Clustermarket may request from time to time.
6.4 You may not publish Listings for any Resources that:
6.4.1 are not used within the science or technology sectors;
6.4.2 are prohibited by law;
6.4.3 you do not have the legal authority to Provide; or
6.4.4 otherwise breach these Terms or Applicable Law.
6.5 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.
6.6 Upon receiving a Booking Request from a Customer, you may approve or amend the Booking Request by using the functionality enabled on the Portal to send the Customer 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 Customer (for example the relevant requirements and specifications of performance) (the Agreement). You may also elect to share a contract with the Customer, which shall form part of the Agreement.
6.7 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 Clause 10 (Payment). 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.
6.8 When you accept a Booking Request from a Customer 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.
7. TERMS FOR CUSTOMERS
7.1 You agree that a Listing 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.
7.2 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 individualized charge, you may provide a description of the Technical Services you require and request a quote from the Provider.
7.3 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.
7.4 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.
7.5 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.
7.6 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 (as defined in Clause 6.6). You may accept the Agreement by using the functionality enabled on the Portal and on Acceptance (as defined in Clause 6.7) 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 Clause 10 (Payment).
7.7 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.
8. PRINCIPLES FOR AGREEMENTS
8.1 While Clustermarket is not a party to the contractual relationship between the Provider and the Customer, 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 Customer 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.
8.1.1 Commencement of Provision. Provider must specify to the Customer 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.
8.1.2 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.
8.1.3 Intellectual Property Rights. The Agreement shall not affect either the Customer’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 Customer pursuant to the Agreement, subject to the Customer complying with terms and conditions of the Agreement (including payment).
8.1.4 Confidentiality. The Provider and the Customer 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.
8.1.5 Illegal Work. The Provider and the Customer shall apply with Applicable Law and shall not use the Platform or any Provision for any illegal or immoral purpose.
8.1.6 Refund and Cancellation Policy. The cancellation provisions set out in Clause 11.2 below shall be deemed incorporated into the Agreement and the Provider must inform the Customer of its refunds and cancellation policy (provided always that such policy is subject is to the cancellation provisions set out in Clause 11.2).
8.2 These principles are not a substitute for legal advice and Clustermarket recommends that each Participant obtains legal advice prior to entering into an Agreement. Clustermarket expressly disclaims any liability relating to use or reliance on these principles.
9.1 Unless otherwise agreed with Clustermarket in writing, Clustermarket shall request payment from the Customer for the following fees:
9.1.1 the fee charged by the Provider for Provision of the Resources in accordance with the Listing or as otherwise agreed between the Customer or Provider in the Agreement (Provider Fee);
9.1.2 a fee charged by Clustermarket in consideration for the use of the Portal (Clustermarket Service Fee), which shall be up to 10% of the Provider Fee (as determined by Clustermarket in its sole discretion); and
9.1.3 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).
9.2 The Customer 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 Customer to Clustermarket, including the bank charges, shall be borne by the Customer.
9.3 All Marketplace Fees and Enterprise Fees (together, Fees) are exclusive of VAT (if applicable.
10.1 The Marketplace Fees and any applicable VAT shall become due and payable by the Customer upon Acceptance. Unless otherwise agreed with Clustermarket in writing, the Customer shall pay the Marketplace Fees to Clustermarket either:
10.1.1 immediately, if the Customer has chosen credit card as the payment method; or
10.1.2 within three Business Days of the date on which Acceptance occurred, if the Customer has chosen bank transfer as the payment method.
10.2 The Provider authorizes 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 Clauses 10.4 and 10.6 below. Clustermarket is entitled to retain the Clustermarket Service Fee.
10.3 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.
10.4 Once Clustermarket has received the Marketplace Fees from the Customer, Clustermarket shall notify the Provider. Unless otherwise agreed between Clustermarket and the Provider in writing and subject to Clauses 10.6 and 10.7, 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 Customer 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 Customer.
10.5 In the event that the Provider does not confirm via the Portal that the Provision has been completed, Clustermarket shall refund to the Customer 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.
10.6 The Provider and the Customer 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:
10.6.1 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);
10.6.2 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
10.6.3 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 Customer and inform Clustermarket in writing of any agreed Additional Payment Option.
10.7 Clustermarket’s obligation to remit funds to the Provider in accordance with Clauses 10.4 and 10.6 is limited to the funds that Clustermarket has actually received from the relevant Customer, less amounts owed to Clustermarket (including the Clustermarket Service Fee), and may be subject to chargeback or reversal in accordance with Clause 11. In case of payment by bank transfer, the payment obligation of Clustermarket is discharged on remittance by Clustermarket and not receipt by the Provider.
10.8 It is the Provider's responsibility to determine whether and what taxes and duties (including VAT) apply to the transactions set out in this Clause 10 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.
10.9 Clustermarket will inform the Provider and the Customer of each completed payment via the Portal.
10.10 Any money held by Clustermarket on behalf of a Participant will not attract interest whilst being held.
10.11 If you are an Enterprise Provider:
10.11.1 you must pay the Enterprise Fees as set out in the Order Form by the method agreed between you and Clustermarket from time to time. If you choose to pay by invoice:
(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;
10.11.2 if your use of the Services exceeds the level specified in the Order Form (for example, in respect of the number of permitted end users), you agree that Clustermarket may bill you for such additional Services on a pro-rated basis;
10.11.3 you agree that Clustermarket may revise the Enterprise 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 the end of any Renewal Term;
10.11.4 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.
10.11 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.
11.1 Subject to Clause 11.2 and Clause 11.3, the extent to which either a Provider or a Customer can cancel an Agreement, and the consequences of such cancellation (for example whether the Customer 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).
11.2 The following terms apply to cancellation of an Agreement:
11.2.1 if the Provider cancels the Agreement (other than due to the Customer’s breach of the Agreement), Clustermarket shall refund the Marketplace Fees collected to the Customer;
11.2.2 if the Customer 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 Customer if the Provider confirms that the Agreement has been cancelled and the Customer 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.
11.3 If a Provider cancels an Agreement pursuant to Clause 11.2.1, the Provider expressly agrees and acknowledges that Clustermarket may apply consequences to its Listing, including:
11.3.1 publishing a negative review on the Listing indicating that a booking was cancelled without cause; and
11.3.2 keeping the calendar for the Listing unavailable or blocked for the date(s) of the cancelled booking.
12. TERM AND TERMINATION
12.1 These Terms shall be effective for the duration of your use of the Platform.
12.2 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. If 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.
12.3 If you are an Enterprise Provider:
12.3.1 these Terms shall commence on the Commencement Date and continue for the Initial Service Term. Unless terminated in accordance with Clause 12.3.2, 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
12.3.2 you and/or Clustermarket may terminate these Terms by giving at least 30 days’ written notice, to take effect at the end of the Initial Service Term or any Renewal Term.
12.4 We may immediately terminate your account with us if you have materially breached these Terms and/or Applicable Law. On termination of your account pursuant to this Clause 12.3, all pending and confirmed Agreements shall automatically be cancelled and:
12.4.1 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 Customers. If you are an Enterprise Provider, all Enterprise Fees for the remainder of the Initial Service Term or Renewal Term (as applicable) will be immediately due and payable to Clustermarket; or
12.4.2 if you are a Customer, 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.
12.5 We may immediately suspend your access to the Portal (either permanently or temporarily) in our sole discretion if we have reason to believe you have breached these Terms and/or Applicable Law. If you are an Enterprise Provider, your obligation to pay the Enterprise Fees will not be affected by any such suspension.
12.6 Unless you are an Enterprise Provider, you may terminate your Account at any time. Please email us with the instruction to terminate your account. On termination of your Account, all pending and confirmed Agreements shall automatically be cancelled and the provisions of Clause 11 shall apply. If you are an Enterprise Provider, you may terminate your Account pursuant to Clause 12.3.2 above.
13. PARTICIPANT CONTENT
13.1 Subject to the provisions of these Terms, Participants may create, upload, and post Content on the Portal and make it available to other Participants (Participant Content).
13.2 By creating, uploading, posting or otherwise making available any Participant Content on or through the Portal, you hereby grant Clustermarket a limited, non-exclusive, royalty-free, worldwide, irrevocable, perpetual, sub-licensable and transferable license to use such Participant Content in Clustermarket’s provision, development and enhancement of the Portal and associated services.
13.3 By registering for an account you grant Clustermarket the right to refer to you as 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 license to use your organization's name and/or trade mark on the Portal for the purposes of providing a Listing and for use on Clustermarket’s website, advertising and marketing materials.
13.4 You hereby acknowledge and agree that any Participant Content that you post on the Portal 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 Portal, for example through communications with other Participants, users or third parties, you do so at your own risk.
13.5 You are solely responsible for any Participant Content that you make available through the Portal and you shall bear all legal consequences and liabilities arising in relation to such Participant Content.
13.6 Unless otherwise agreed with Clustermarket by way of a separate agreement, you are not authorized to post Content on the Portal which contains advertisements, contacts or links to external websites or resources or which solicits any other user 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 unauthorized advertisements, Clustermarket is entitled to delete such items without notice and/or terminate or suspend your Account.
13.7 As further detailed in Clause 4.4, Clustermarket does not undertake checks on Participant 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 Participant Content without the prior written consent of the Participant.
13.8 Clustermarket reserves the right, without prior notice, to edit, suspend or remove any Participant Content or 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.
14. USE OF CONTENT
14.1 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 Participant Content), except to the extent you are the legal owner of the Participant Content or as expressly permitted in these Terms.
14.2 Subject to your compliance with these Terms, Clustermarket grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access the Portal and the Content (including Participant Content) for the purpose of the Provision of Resources and/or using Resources (as applicable) through the Portal.
14.3 If you are an Enterprise Provider, conditional on your payment of the Enterprise Fees in accordance with Clause 9.3, Clustermarket grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to receive the Services during the Initial Service Term and any applicable Renewal Term.
14.4 You may download and print extracts of Content from the Portal, provided that:
14.4.1 the material shall not be reproduced or included in any other work or publication in any medium;
14.4.2 the material may not be distributed or sold to any third party; and
14.4.3 you do not remove or alter any copyright or other proprietary notices contained in the material.
14.5 You shall not make any copies or authorize 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.
14.6 Your legal rights that cannot be excluded by law shall remain unaffected by these Terms.
15.1 You represent, warrant and undertake that:
15.1.1 you have the legal capacity and authority to enter into contracts (including these Terms and Agreement);
15.1.2 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;
15.1.3 you have all required rights, permits, licenses, qualifications/training and consents to either make Resources available for Provision and/or to use Resources (as applicable);
15.1.4 you will comply with all Applicable Laws and not use the Platform for any illegal purpose; and
15.1.5 you will use reasonable endeavors to ensure that your Account information, Listings and Participant Content are accurate and up-to-date.
15.2 In respect of all Participant Content that you make available on the Platform, you represent, warrant and undertake that:
15.2.1 you are the legal owner of all such Participant Content or you have the necessary rights, licenses and consents to make such Participant Content available on the Portal;
15.2.2 such Participant Content does not infringe any third party’s Intellectual Property Rights or other proprietary rights (including rights of publicity or privacy);
15.2.3 such Participant Content does not breach Applicable Law;
15.2.4 such Participant Content is not fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
15.2.5 such Participant Content does not constitute libel, slander, defamation or is otherwise offensive; and
15.2.6 such Participant Content does not promote illegal or harmful activities or substances.
15.3 Except as expressly provided in these Terms:
15.3.1 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
15.3.2 the Platform, the Content (including any Participant Content) and the Services are provided to the Customer on an "as is" basis.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 The Platform and the Content (including Participant 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 (including Participant Content) and the Services and you acknowledge and agree that such Intellectual Property Rights shall remain vested in Clustermarket and/or its licensors.
16.2 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.
16.3 You shall not in any way infringe the Intellectual Property Rights of Clustermarket or the other Participants. You shall promptly notify us of any infringement or suspected or threatened infringement of the Platform or the Content (including Participant Content) that may at any time come to your notice, giving reasonable particulars.
17.1 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 17.2.
17.2 Each Party may disclose the Confidential Information of the other Party or of any other Participant:
17.2.1 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. 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 17; and
17.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3 Neither Party shall use any Confidential Information of the other Party or of any other Participant for any purpose other than to perform its obligations under these Terms or an Agreement.
17.4 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.
17.5 On termination of these Terms or an Agreement, each Party shall return or destroy all Confidential Information of the other Party and other Participants.
18. LINKS TO AND FROM SITES
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.
19. LIMITATION OF OUR LIABILITY
19.1 Nothing in these Terms shall limit or exclude the liability of either Party for:
19.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
19.1.2 fraud or fraudulent misrepresentation;
19.1.3 liability under the indemnities contained in Clause 20; or
19.1.4 any matter in respect of which it would be unlawful to exclude or restrict liability.
19.2 Subject to Clause 19.1 above, we shall not under any circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
19.2.1 any economic loss or other loss of profit, revenue, business, opportunity, or anticipated;
19.2.2 any interruption of use or loss or corruption of data (other than in any case as caused by Clustermarket’s gross negligence);
19.2.3 any loss of goodwill or reputation;
12.2.4 any cost of procuring substitute or replacement goods or services; or
19.2.5 any loss that is an indirect or secondary consequence of any act or omission of Clustermarket.
19.3 Subject to Clauses 19.1 and 19.2 above, our total liability to you in respect of any loss or damage arising under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
19.3.1 if you are a Customer, the aggregate of Clustermarket Service Fee that you have paid to Clustermarket in the twelve (12) month period prior to the event giving rise to the liability; or
19.3.2 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
19.3.3 if no such payments have been made under Clause 19.3.1 or Clause 19.3.2 as applicable, £1,000.
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.
19.4 As Clustermarket is not a party to an Agreement between a Provider and Customer, 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.
20.1 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) resulting from any claim, action, demand, fine or proceeding brought by any Participant or other third party against the Clustermarket Indemnified Parties arising from any of the following:
20.1.1 a material breach by you of these Terms or an Agreement. For the avoidance of doubt, any breach of clauses 17 and 23 will be considered material for the purpose of this clause 20;
20.1.2 any Participant Content that you make available on the Portal, including such Participant Content infringing the Intellectual Property Rights of a Participant or other third party;
20.1.3 any taxes or duties arising from or in connection with the offer, sale or transaction on or through the Portal or the collection, payment or failure to collect or pay such taxes or duties; and
20.1.4 a failure by you or your employees, agents or contractors to comply with Applicable Law.
21. SETTLEMENT OF DISPUTES
21.1 If you have any queries or complaints about the Platform or a Participant, please contact us using the contact information as detailed in Clause 1.4. We will use reasonable efforts to respond to you promptly.
21.2 Any disputes arising from or in connection with the Agreements between Providers and Customers, or any other dealings or business between/among the Participants using the 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.
21.3 In the event of any dispute arising from or in connection with the relationship between Clustermarket and you, the Parties shall first attempt to resolve the dispute through friendly consultations 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.
22.1 The Terms do not create or infer any rights that are enforceable by any person who is not a Party to them.
22.2 We may transfer our rights and obligations under these Terms to another organization, 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.
22.3 If we decide not to exercise or enforce any right that we have against you at a particular time, then this does not prevent us from later deciding to exercise or enforce that right.
22.4 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.
22.5 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.
22.6 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 22.6 does not apply to the service of any proceedings or documents in any legal action.
22.7 No variation of these Terms shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).
22.8 These Terms, together with any Order Form (if applicable) 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.
22.9 In the event of any conflict between any Order Form and the remainder of these Terms, the Order Form shall take priority and prevail.
22.10 Clustermarket shall have no liability to you 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.
23. DATA PROTECTION AND PRIVACY
23.2 In this clause 23, 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.
23.3 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.
23.4 The Parties acknowledge and agree that for the purposes of DP Law, you are a 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 Platform, in which case Clustermarket shall act as a data controller.
23.5 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.
23.6 Clustermarket shall, in relation to any personal data processed by it in connection with its performance of its obligations under these Terms:
23.6.1 process that personal data only on your documented written instructions (which include, for the avoidance of doubt, the performance of these Terms) unless Clustermarket is required by Applicable Law to otherwise process that personal data. Where Clustermarket is relying on Applicable Law as the basis for processing personal data, 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;
23.6.2 ensure that it has in place appropriate technical and organizational measures to protect against unauthorized 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 unauthorized 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;
23.6.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
23.6.4 not transfer any personal data outside of the 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.
23.6.5 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;
23.6.6 notify you without undue delay on becoming aware of a personal data breach;
23.6.7 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
23.6.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 23.6, and, at your expense, allow for and contribute to audits, including inspections, conducted by you or your representative(s).
23.7 You consent to Clustermarket:
23.7.1 appointing third-party processors of personal data under these Terms. Clustermarket confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in Clauses 23.6 and 23.7 and in either case which Clustermarket undertakes 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 23.7.1; and
23.7.1 transferring personal data outside of the European Economic Area, providing the conditions in clause 23.6.4 are fulfilled.