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Standard Terms and Conditions [version 11/2023] |
Cultiv8tiv Ltd, trading as Cultiv8tiv, is a private company limited by shares incorporated and registered in England and Wales with company number 15276094 and whose registered office is located at Milton Place, 30 Tenby Street, Birmingham, England, United Kingdom. Wherever used in these terms and conditions of business (“T&Cs”), “Cultiv8tiv”, “we”, “our” or “us” refer to Cultiv8tiv Limited (and our permitted successors and/or assigns). Wherever used in these T&Cs, “you”, “your” or similar terms mean the person utilising and/or accessing the Services (as stated in the Order Form), including persons for which you are responsible such as your employees and other permitted third parties (as applicable).
These T&Cs and the “Order”, constitute a binding legal agreement between Cultiv8tiv and you (the “Customer”). Any purported Order by you for the Services shall form a legally binding Contract. This Contract governs your access to and use of our products, software, services, and website (collectively “Services”), and any and all information uploaded or added or appearing on the Services (collectively “Content”).
By accessing and using the Services, you agree to be exclusively bound by the Contract to the exclusion of any other terms and conditions which seek to have effect, and you warrant that you have read, understood and accepted the terms of the Contract. If you do not agree to be bound by the Contract, you are not permitted to use the Services and/or Content under any circumstances.
By accessing and using the Services you are consenting to (or promising that you have obtained appropriate consent for) the collection and use of personal data by Cultiv8tiv in accordance with Cultiv8tiv’s Privacy Policy.
1- The Services
1.1 You are solely and exclusively responsible for the use of the Services and for any Content accessed or made available to others through your account (even if that Content is accessed or made available by others). You assume all risks associated with the Services and any Content accessed or made available to others through your account.
1.2 To access or use the Services, you must be able to form a binding contract with Cultiv8tiv and you must not be prohibited from receiving the Services under any applicable laws. You warrant that you have the ability and continuing authority to form a legally binding contract with us.
1.3 You acknowledge that you have the authority to provide us with the data required to fulfil our Services
1.4 Your access to and use of the Services must be in accordance with these T&Cs at all times. If you commit a material breach of these T&Cs, we may without notice suspend or terminate your use and/or access to the Services in accordance with the remaining provisions of these T&Cs.
1.5You agree that any of your group companies who use the Services shall be bound by these T&Cs at all times and you shall procure that they adhere to these T&Cs, and you shall be wholly responsible for all of their actions and/or omissions.
1.6 You agree that the Data Protection Addendum incorporates all data protection requirements relating to the Services and the Contract and you and we will comply with its provisions.
2- Your Account
2.1 You must provide your legal full name (i.e. company name and number), address for service of any notices, a valid email address and contact details of an authorised representative, and any other information requested by us in order to complete the registration process.
2.2 You are responsible for maintaining the security of your account login information and for any activities or actions occurring under your account. Cultiv8tiv will not be responsible for any loss or damages whatsoever resulting from your failure to comply with this obligation.
3- Term, Use and Restrictions
3.1 We agree to supply the Services, and you agree to accept the Services as specified at the point of purchase. Should the service be a subscription then unless we receive written notice from you to cancel the Contract before the 30 day period prior to the natural expiry of the Initial Term (and/or each anniversary thereafter) then the Contract shall automatically continue for a further term equal to the Initial Term (the “Additional Term”), and continue on a rolling basis thereafter upon the expiry of each Additional Term unless the aforementioned notice is received by us.
3.2 Any renewal of the Contract in accordance with clause 3.1. shall be at the current price being charged to you unless notice is sent by us to you prior to 60 days of the anniversary of the renewal that there will be a price increase. Upon any automatic renewal of the Contract or otherwise the provisions of the Contract shall continue to apply in all respects.
3.3 You may only use the Services in accordance with these T&Cs. You may only use the Services in relation to your own genuine and legitimate pursuit of assessing and improving organisational culture within your organisation.
3.4 You may not use the Services for any illegal or unauthorised purpose, including in any way that violates copyright, privacy or other laws applicable in England and Wales or which are applicable to you.
3.5 You must not transmit or otherwise make available to others any worms or viruses or any code of a destructive nature (“Viruses”) through the Services.
3.6 You may not, without Cultiv8tiv’s prior written permission (including the permissions granted by these T&Cs): (a) copy, distribute (including by framing any of the Services on any website), modify, enhance, translate, reproduce, sell, resell, sublicense, rent, lease, or otherwise attempt to exploit the Services; (b) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code (except to the extent that this restriction is expressly prohibited by law); (c) make derivative works of the Services; or (d) modify another website so as to falsely imply that it is associated with the Services, Cultiv8tiv or any other Cultiv8tiv products or services.
4- Content
4.1 Cultiv8tiv and its designees have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Cultiv8tiv may (but has no obligation to) remove Content that Cultiv8tiv determines in its sole discretion to be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate.
5- Payment Matters
5.1 Payment shall be made at the point of sale.
5.2 You shall pay for the Services at such times and at such amounts as specified at the point of order.
5.3 Purchased Services are only refundable at the sole discretion of Cultiv8tiv.
5.4 All fees are exclusive of VAT or any equivalent taxes, levies, withholdings or duties imposed by taxation authorities in any other jurisdiction, and you shall be responsible for payment of all such taxes, levies, withholdings or duties in addition to the fees (as specified in the order form or otherwise).
5.5 You must specify the country of your business so that Cultiv8tiv can understand its obligations to any applicable taxation authorities.
6- Modifications to the Services and Prices
6.1 Cultiv8tiv may change the Services or the format or delivery of the Services from time to time and where reasonable will endeavour to notify the customer. Any changes to the Services, including releases of new features, tools or resources, shall be subject to these T&Cs.
7- Suspension, Cancellation and Termination
7.1 Cultiv8tiv shall endeavour to provide you with uninterrupted access to the Services however from time to time the Services may be suspended without notice or even withdrawn due to essential maintenance and/or any other extenuating circumstances (in our sole discretion). Cultiv8tiv will try to keep such maintenance to times that are outside of normal business hours in the United Kingdom (being 8.30am to 5.00pm Monday to Friday on a day that is not a bank holiday), but it may not always be able to ensure this.
7.2 Cultiv8tiv may suspend or restrict your access to the Services at any time and without any liability whatsoever for any good and/or valid reason (in our sole discretion), including:
(a) dealing with any actual or suspected security breach, virus or attack;
(b) when required to by any regulatory, judicial, governmental, police or other competent body;
(c) when we suspect any abuse of the Services; and
(d) for any emergency action that a competent supplier would consider reasonable,
and Cultiv8tiv shall endeavour to inform the customer of any such suspension or restriction as soon as reasonable and shall lift the suspension or restriction as soon as conditions allow.
8- Ownership and Licences
8.1 Cultiv8tiv retains all rights, title and interest of any and all nature whatsoever in the intellectual property rights (including but not limited to copyright, trade-mark, patent, trade secret and all other intellectual property rights) in the Services and Cultiv8tiv’s Content. You acquire no rights whatsoever to all or any part of the Services except for the limited right to use the Services granted by these T&Cs. All rights not expressly granted to you are reserved by Cultiv8tiv absolutely.
8.2 You agree not to assert or attempt to assert any intellectual property rights in or over the Services and/or our Content. You further agree not to publish or reproduce any part of the Services and/or our Content.
8.3 If you become aware of anyone infringing, about to infringe or attempting to infringe our intellectual property rights belonging to us then you shall inform us immediately and agree to abide by our reasonable instructions in relation to assisting us in protecting our intellectual property rights.
9- Disclaimer and Limitation of Liability
9.1 This section 9. sets out the entire financial liability of the parties (including any liability for the acts or omissions of employees, agents and subcontractors) in respect of:
(a)any breach of the Contract however arising;
(b)any use made by you of the Service and/or the Content; and
(c)any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 Nothing in these T&Cs shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) breach of section 2 of the Consumer Protection Act 1987.
9.3 Without prejudice to clause 9.2 and clause 9.10, neither party shall under any circumstances whatsoever be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) loss or corruption of data or information; or
(g) special, indirect or consequential damage suffered by a party that arises under or in connection with the Contract.
9.4 Without prejudice to clause 9.2. and clause 9.10, Cultiv8tiv’s total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the amount having been paid by you for the provision of the service.
9.5 Without prejudice to clause 9.2, clause 9.7. and clause 9.10. your total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the fees having been paid by you for the provision of the service.
9.6 Nothing in this clause I shall restrict or limit the general obligation at law to mitigate a loss a party may suffer or incur as a result of an event that may give rise to a claim.
9.7 Nothing in this clause shall restrict or limit your payment obligations under the Contract.
9.8 For the avoidance of doubt, Cultiv8tiv shall not be liable to you or to any third party for any change to the Services including reasonable price changes, suspension, restriction and/or discontinuance of the Services.
9.9 Cultiv8tiv disclaims all responsibility and all liability to you or to any third party (including without limitation, liability in negligence) for all expenses, losses, damages and costs you might incur as a result of your breach of clause 10.2.
9.10 Neither party may benefit from the limitations and exclusions set out in this clause 9. in respect of any liability arising from its deliberate default.
10.1 When contacting our customer service team you acknowledge and agree that you shall only provide us with personal data of a data subject which you have instructed us to process under the terms and conditions of the Data Protection Addendum. You further acknowledge and agree that you shall not transmit any material (including personal data) which is in breach of data protection legislation or let us have any other information that you regard as confidential, commercially sensitive or valuable.
10.2 You understand that Cultiv8tiv uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services.
10.3 If either party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a force majeure event (i.e. an event beyond its reasonable control), it shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
10.4 The failure of Cultiv8tiv to exercise or enforce any right or provision of the T&Cs shall not constitute a waiver of such right or provision. A printed version of these T&Cs and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these T&Cs to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Subject to Cultiv8tiv’s ability to amend these T&Cs, they cannot be changed.
10.5 If any of the provisions contained in these T&Cs are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these T&Cs and such determination shall not affect the remaining provisions contained herein.
10.6 You may not assign these T&Cs or any of your rights or obligations under the Contract. Subject to the foregoing, these T&Cs shall endure to the benefit of and be binding upon you and Cultiv8tiv and our respective successors (including any successor by reason of amalgamation).
10.7 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:(a) delivered by hand or pre-paid first-class post or other next working day business service at its registered office (if a company) or its principal place of business (in any other case); or
(b) (if notice is to be served by post outside the country from which it is sent) sent by registered airmail; or
(c) Sent by email to:
(i) Cultiv8tiv: letstalk@cultiv8tiv.com
(ii) You: as listed at the point of purchase.
10.8 Any notice shall be deemed to have been received:
(a )if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service; or
(c) if sent by registered airmail, five days from the date of posting; or
(d) if sent by email, at the time of transmission unless a delivery failure report is received.
10.9 This section 10. does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.10 Our 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, in relation to its subject matter. You acknowledge and agree that in agreeing to purchase the Services and be bound by the Contract you have not relied on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
10.11 A person who is not a party to the Contract shall not have any rights in or under or in connection with it.
10.12 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.13 You agree to adhere to our reasonable instructions from time to time in relation to the Services and you further agree to deal with us in good faith at all times in respect of any aspect of the Services including but not limited to these T&Cs.
10.14 You agree to indemnify, and keep us indemnified from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by us as a result of or in connection with a breach of data protection and a breach of our intellectual property rights.
10.15 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the laws of England and Wales. You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes and claims).
10.16 The laws of England and Wales apply to your access to or use of the Services, notwithstanding your domicile, residency or physical location. The Services are intended for use only in jurisdictions where they may lawfully be offered for use.
11- Interpretation provisions of these T&Cs
In these T&Cs, the following rules apply:
(a) words in the singular include the plural and vice versa;
(b) reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
(c) reference to a party includes its personal representatives, successors or permitted assigns;
(d) an obligation to do something includes an obligation not to do something;
(e) these T&Cs are jointly and severally liable as amongst the obligors (someone who legally agrees to do something);
(f) reference to writing or written includes post and emails but not faxes;