'Bigger' subscription legals : Wednesday, August 12, 2020
General terms and conditions
Last updated: August 2020
These General Terms, Software Licence, Data Licence, Support and Maintenance Terms, Cloud Services Terms, Data Addendum and the Order (as the case may be) form, and are incorporated into, the agreement between you and 51Degrees.mobi Limited ("we", "us" or "our", as applicable), a company incorporated under the laws of England and Wales (company numbered 07397529) with its registered office located at 5 Charlotte Close, Caversham, Reading RG4 7BY and apply to the products and/or services we license or supply to you (“Agreement”).
If there is any conflict or inconsistency between any of the terms of the Agreement, they shall be applied in the following order of precedence to the extent the terms are incorporated into the Agreement: (a) first, this paragraph; (b) then the applicable Order; (c) then the Data Addendum; (d) then the Data Licence; (e) then the Cloud Services Terms; f) then the Software Licence; (g) then the Support and Maintenance Terms; and (h) lastly, these General Terms.
These General Terms contain provisions which limit our liability to you, as set out under the heading "Our Liability", below.
|51D Software||software produced or distributed by us, whether licensed on open source terms or the Software Licence, as the case may be.|
|Adaptation||a version, amended version or translation. "Adaptations" shall be interpreted accordingly.|
|Business Day||a day that is not a Saturday, Sunday and bank or public holiday in England.|
|Business Hours||between 09.00 hours and 17.30 hours UK time, on a Business Day.|
|Customer||either you or a customer of yours.|
|Documentation||the latest version of the documentation we may publish in respect of Licensed Materials, as updated from time to time.|
|Developer||a developer is an individual, who is you, an employee of yours, or an employee or contractor to a software development company engaged by you.|
|Fees||the costs and charges payable for the goods and/or services as set out in the Order and/or as notified by us to you under clause 4 of these General Terms. "Fee" shall be interpreted accordingly.|
|General Terms||these General Terms and Conditions.|
|Initial Term||the initial term for the applicable licence or services, as set out in the Order.|
|Licence Key||the licence key to activate products or services or enable access to products or services.|
|Licensed Materials||products and/or services licensed by us to you, other than under the terms of an open source licence.|
|Order||the order placed by you setting out details of the licences and/or Services which you wish to be supplied by us, including the description of the products and/or services, and any other terms referred to in the order or description.|
|Services||the services we provide to you described in the Order;|
|Support Fees||Fees payable by you for Support Services (as defined in the Support and Maintenance Terms), as set out in the Order or as notified by us to you under clause 4 of these General Terms.|
|Term||the term of the Agreement as described in clause 7.1 of the General Terms.|
|Trial Period||the 30 day trial period commencing on the date we accept your Order.|
|Website||our website published at 51degrees.com for the time being.|
|you||the customer specified in the Order (if applicable) or the owner of the domain, website, server or computer initiating a Request (as defined in the Cloud Services Terms) or an agency, developer or other service provider using the Cloud Services for or on that owner's behalf. "Your" shall be interpreted accordingly.|
2 Intellectual Property Rights
2.1 You agree that all intellectual property rights in the Licensed Materials throughout the world remain vested at all times with us and/or our licensors, that rights in the Licensed Materials are licensed and not sold to you, and that you have no rights in or to use the Licensed Materials other than the licence expressly granted in the Agreement, and not otherwise.
2.2 As at the date of the Agreement, the Licensed Materials do not infringe the intellectual property rights of any third party.
3.1 Other than as provided in the Agreement or as permitted by your statutory rights which cannot be excluded by agreement, you agree that you will not:
3.1.1 copy any Licensed Materials except where such copying permitted under the terms of the Agreement;
3.1.2 rent, lease, sublicense, loan, translate, merge, make Adaptations of or otherwise modify the Licensed Materials;
3.1.3 permit or authorise Licensed Materials or any part thereof to be combined with or become incorporated in any other program, or used as a library by any other program;
3.1.4 use the Licensed Materials and/or Documentation to provide services to third parties and shall only use Licensed Materials for your own internal business purposes;
3.1.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided for in the Agreement;
3.1.6 use Licence Keys issued by us other than in accordance with the Agreement; or
3.1.7 disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Licensed Materials.
3.2 The Agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Licensed Materials and services and all warranties and conditions other than those set out herein are excluded to the extent permitted by law. No condition, warranty, misrepresentation or other terms, express or implied, are binding on us except other than as expressly stated in the Agreement. Any condition, warranty, misrepresentation or other term concerning the supply of the Licensed Materials or our services which might otherwise be implied into, or incorporated in, the Agreement, or any collateral contract, whether by statute, common law or otherwise howsoever is excluded to the fullest extent permitted by law.
3.3 You agree that Licensed Materials:
3.3.1 have not been developed to meet your individual requirements and that it is your responsibility to ensure that the facilities and functions of the Licensed Materials meet your requirements.
3.3.2 are not free of bugs or errors and you accept that the existence of any errors which do not materially interfere with the overall functioning of the Licensed Materials as a condition of supply and licensing of Licensed Materials;
3.3.3 may rely upon the proper functioning of third party computing infrastructure which we do not control, and you accept that where such infrastructure fails products or services made available by Licensed Material may not be available to you;
3.3.4 shall not be accessed in order to build a product or service which competes with the Services and/or the Documentation; and
3.3.5 are licensed to you and not to any subsidiary or holding company or entity.
3.4 You warrant, represent and undertake to:
3.4.1 implement and maintain security measures to safeguard the Licensed Materials from use contrary to the terms of the Agreement;
3.4.2 refrain from exceeding terms of licences granted to use Licensed Materials;
3.4.3 without prejudice to any of our other rights or remedies, pay on demand for unlicensed use of Licensed Materials;
3.4.4 procure that third parties shall not cause you to exceed your entitlement to use Licensed Materials; and
3.4.5 maintain a full and accurate documentary record of use and distribution of Licensed Materials and shall produce that record to us on request.
3.5 We only wish to contract with traders, within the meaning of section 2 of the Consumer Rights Act 2015 or any successor legislation ("a Trader"). It is a condition precedent of this contract that you are a Trader within the meaning of the Consumer Rights Act. We retain the right to terminate any Agreement which may be formed with any person who is not a Trader. You warrant, represent and undertake that you are a Trader and not a Consumer within the meaning of section 2 of that Act.
3.6 You shall not make any use of the Licensed Materials for purposes, or in connection with products or services, that in our sole opinion could substitute for any of our products or services.
4.1 Fees are exclusive of VAT, which is payable by you at the rate and in the manner for the time being prescribed by law.
4.2 You shall pay the Fees to us on or before the start of the Initial Term and each Renewal Term (as defined below in clause 7.1 of these General Terms) if you choose to pay annually at the time you submit your Order. If you choose to pay the Fees on a monthly basis you shall do so in accordance with clause 4.3 of these General Terms. You irrevocably authorise us to use any credit card details to take payments due to us. If you do not provide us with credit card details, you must pay the Fees within the time period allowed for such payment. If you miss a payment you are obliged to make, we will be entitled to draw the entire outstanding balance for the relevant period without notice to you.
4.3 Fees payable monthly for a licence or Service under the Agreement shall be due on the commencement date of the Initial Term and on that date on each month thereafter during the Term. Alternatively, we reserve the right to take payment for the first monthly Fee for the Initial Term calculated on a pro rata basis for the remainder of the calendar month in which it falls due ("First Partial Month") and the monthly Fee in full for each calendar month thereafter (for which payment will fall due on the first day of each calendar month). If we exercise this right, the Initial Term shall be deemed extended by the duration of the First Partial Month.
4.4 We shall be entitled to increase the Fees payable under the Agreement once per calendar year for each licence or Service we provide provided that such increase shall not exceed an amount equal to 7.5% of the Fees payable for the licence or Service 12 months prior to the effective date of the increase. We shall provide written notice of such increase at least 14 days prior to the effective date of the increase as specified in the notice.
4.5 No Fees are payable in relation to products or services licensed or supplied during the Trial Period where the relevant Order specifies that such products or services will be supplied by us without charge during such period.
4.6 We accept payment by credit card and this payment method shall apply by default under all Orders. If you pay Fees by credit card, we will take payment automatically on or around the due date for payment. You may request in writing to pay using an alternative payment method. If we accept payment by an alternative method, we shall be entitled to charge you an administration fee in respect of each payment you make notified to you in writing at the time we accept your request. The administration fee shall be payable by you at the same time as the Fees. We may adjust the administration fee at any time by providing written notice to you.
4.7 Except as specified in the Order, all Fees shall be non-refundable.
4.8 If you fail to pay the Fees in full when due and payable, the licences set out in the Agreement or the Services may be suspended without notice to you; (2) replaced with other data chosen by us in our sole discretion and without notice, and/or (3) terminated on 7 days' notice in writing by us. We reserve the right at all times to exercise such rights in sequence or in any order and vary such measures we see fit from time to time
5.1 You shall, within 24 hours of receiving our written notice, provide us with any records or other information we reasonably request to demonstrate that you have and will comply with your obligations under the Agreement.
5.2 If you do not provide the information requested by us under clause 5.1 you irrevocably agree that our records relating to your compliance with your obligations under the Agreement or relating to the use or misuse of the Licensed Materials (whether by you or any person authorised by you) shall be deemed conclusive.
6 Your Account
You shall maintain an account on our Website at all times during the Term. You must not share your login details for your account with any third party, and we reserve the right to suspend or terminate access to your account if we suspect or become aware that you are misusing it or that it is being used by anyone other than you.
7 Term and Termination
7.1 The Agreement shall commence on the date we accept your Order or the commencement date expressly specified in the Order. The Agreement shall continue in force and effect for the Trial Period and, subject to our receipt of the applicable Fees, for the Initial Term. Upon expiry of the Initial Term, the Agreement will automatically renew for successive periods of the same duration as the Initial Term excluding any First Partial Month (each a "Renewal Term"), unless either you or we give written notice of non-renewal to the other of not less than thirty (30) days (such notice to expire prior to the date of expiry of the Initial Term or Renewal Term, as applicable). If we do not receive payment from you on or before the expiry of the Trial Period, the Agreement will automatically terminate on expiry of the Trial Period without notice and without liability to you.
7.2 We may terminate the Agreement immediately by written notice to you if you are in material breach which is incurable or if you fail to remedy a curable breach within 14 days of your receipt of written notice specifying the breach and requiring you to remedy the same within the said period, or are in persistent breach of the terms of the Agreement without notice to you. It will be a material breach of the Agreement to fail or refuse to comply with any of the provisions of clauses 2 to 6 of these General Terms.
7.3 We may terminate the Agreement for convenience immediately by written notice to you within 14 days after we accept the applicable Order. Non-exhaustive examples of when we may do so are where we believe that you are our competitor or may intend to misuse any Licensed Materials, but we are not obliged to state any reason for such termination. We will refund all Fees paid by you in respect of the Order up to such termination.
7.4 We may terminate the Agreement by giving 7 days’ written notice to you if you fail to pay any sum payable to us under the Agreement by the due date for payment.
8 Effects of Termination
8.1 Upon expiry or termination of the Agreement for any reason:
8.1.1 all rights and licences granted to you under the Agreement (including all sub-licences) shall terminate and we shall be entitled to terminate any Services immediately without notice;
8.1.2 you will cease all activities authorised by the Agreement (and procure that any relevant third parties do the same);
8.1.3 you must immediately pay any sums due to us under the Agreement including any sums relating to the unexpired period of the Term;
8.1.4 you will immediately and irretrievably delete Licensed Materials from all computer equipment in your possession or control upon request and certify in writing to us upon request that you have done so upon request; and
8.1.5 the provisions in these General Terms, clauses 4 to 9 of the Cloud Services Terms, clauses 6 to 8 of the Data Licence and any other provisions in the Agreement that by their nature are intended to survive expiry or termination, shall remain in full force and effect after the effective date of such expiry or termination.
8.2 The expiry or termination of the Agreement shall not affect any right to damages or other remedy to which a party is entitled at the date of expiry or termination and, in the case of termination, which the terminating party may have in respect of the event giving rise to the termination.
9 Our Liability
9.1 Nothing in the Agreement will limit or exclude our liability for death or personal injury resulting from our own negligence, or for fraud or fraudulent misrepresentation.
9.2 We will not under any circumstances whatever be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any (i) loss of income, loss of business profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, or loss of, damage to or corruption of data, or (ii) any indirect or consequential loss or damage of any kind however arising.
9.3 Subject to any liability cap expressly set out in the Software Licence, Data Licence, Support and Maintenance Terms, Cloud Services Terms or Order, our maximum aggregate liability under or in connection with all agreements with you including the Agreement, whether in contract, tort (including negligence) or otherwise, for any and all claims arising during any calendar year, will in all circumstances be limited to a sum equal to the lesser of £3,000 and 120% of the Fees paid during that calendar year relating to the particular Services or Licensed Materials to which the claim relates.
10 Force Majeure
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 10 days, the party not affected may terminate the Agreement by giving 14 days' written notice to the affected party. This clause 10 shall not apply to your payment obligations under the Agreement, whether in respect of the Fees, under your indemnification obligations or otherwise.
11.1 All notices given by you to us shall be given to us at our registered address or email address published at https://51degrees.com/contact-us.
11.2 We shall issue notices to you at (where available): (1) the email address or postal address provided by you when placing an Order; (2) the registered office of your business; (3) any business address published by you; and/or (4) the email or postal address provided by you and recorded in the ‘Account Details’ area of our Website.
11.3 Notice will be deemed received and properly served on the next Business Day after an email is sent; three Business Days after the date of posting of any letter, or if hand delivered, on that day. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.
12.1 The licences granted under the Agreement are personal to you. You may not transfer the licences granted hereunder to any other person other than as specified herein. Should you attempt to do so, all licences granted hereunder shall automatically terminate. We may assign the benefit of the Agreement to any person at any time without notice to you.
12.2 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement which is caused by any event or events outside our reasonable control.
12.3 We may amend or replace these General Terms or any other terms or licence by posting them to our Website. Please check our Website regularly. Where we consider in our sole discretion that any such change to the terms of the Agreement has a material adverse effect on you and notify this to you in writing, then you may terminate the Agreement by notice in writing to us provided this is given not more than 28 days after we publish an updated version to our Website. If you do so, we will reimburse Fees for the future period of Services or applicable licence.
12.4 If any of the terms of the Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12.5 The Agreement and any document expressly referred to in it constitute the whole agreement between us and supersedes and extinguishes any previous arrangement, understanding or agreement between us in relation to its subject matter. You confirm that you have not relied on any statement made by us other than those set out in the Agreement prior to entering into the Agreement.
12.6 No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall limit or restrict the rights of that party. Any waiver of rights shall not operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for either party is exclusive of any other right or remedy available to that party. Each such right power or remedy is cumulative.
12.7 You agree that we may include your company name or trading name in our list of customers on our Website and in any other promotional material we produce for our Website or elsewhere. We may display your company logo on our Website and in any promotional material, wherever we may choose to publish or arrange to publish such material.
12.8 The Agreement, its subject matter or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of English Courts.
Cloud services terms
Last updated: August 2020
By accessing or using any of the Cloud Services (or if earlier, when executing an Order), you accept and will be bound by these Cloud Services Terms and our General Terms and Conditions. If an agency, developer or other service provider accesses or uses the Cloud Services for or on your behalf, you shall also be bound by these Terms.
1 Definitions and Interpretation
The definitions and rules of interpretation in this clause 1 apply to these Cloud Services Terms. Any capitalised expressions that are not defined in these Cloud Services Terms will have the meaning given to them in our General Terms and Conditions.
|Cloud Services Description||the functionality and usage requirements for the Cloud Services, made available by us from time to time from our Website.|
|Data Addendum||the terms set out at https://51degrees.com/terms/data-addendum and in any documents referenced within those terms.|
|Request||an electronic message in the prescribed format which is sent as a result of your use of the Cloud Services, as further described in the Cloud Services Description.|
|Usage Restrictions||all restrictions, limitations and exclusions which apply to the Cloud Services in the Agreement.|
|your Data||any and all data transmitted in a Request as a result of your use of the Cloud Services including but not limited to any referrer HTTP headers, location data, URLs, IP addresses or IP address routing information.|
|your Marks||any names (including company, trading or domain names, or your name) or trademarks, service marks, logos, characters, brand identities or brand assets that relate to, or are owned by, you or your licensors.|
2.1 We grant to you a non-exclusive, non-transferable, non-sublicensable and revocable licence to use the Cloud Services in accordance with the terms of the Agreement, provided that you comply with those terms at all times.
2.2 You shall:
2.2.1 comply with the Usage Restrictions;
2.2.2 use the Cloud Services solely for your own internal business purposes or, if you are an agency, developer or other service provider using the Cloud Services for, or on behalf of, your client, solely for that client’s internal business purposes provided that you provide a copy of these Cloud Services Terms to that client before making any use of the Cloud Services and notify them that your access and use of the Cloud Services for or on their behalf shall bind them to these Cloud Services Terms;
2.2.3 use the Cloud Services Description solely for the purposes of receiving the Cloud Services in accordance with the terms of the Agreement;
2.2.4 implement error handling in accordance with good industry practice to mitigate against the effects of any failure of the Cloud Services; and
2.3 You shall not:
2.3.1 exceed the number of permitted Requests set out in an Order; nor
2.3.2 perform any batch or offline processing using the Cloud Services and shall only use those services in connection with real-time Requests (via web or client applications) only.
2.4 You shall not (nor cause a third party to) access, store, distribute or transmit any malware, data, or any other material whatsoever during the Term which (a) is or facilitates illegal or unlawful activity; or (b) interferes with the rights of third parties or the availability or functionality of the Cloud Services, and we reserve the right, without liability or prejudice to our other rights, to temporarily or permanently (in our sole discretion) disable your access to the Cloud Services without notice and without liability to any person in the event that we suspect you (or persons associated with you) to have breached (or cause you to have breached) the provisions of the Agreement.
2.5 If you do not comply with the Usage Restrictions, we may in our sole discretion and without liability to you:
2.5.1 refuse to supply the Cloud Services, including in respect of any Request;
2.5.2 downgrade or restrict the performance of the Cloud Services in any way(s) we see fit;
2.5.3 require you to purchase a licence before permitting any further use of the Cloud Services beyond the Usage Restrictions; or
2.5.4 substitute the Cloud Services for alternative services.
2.6 Without prejudice to any of our other rights or remedies under the Agreement, you shall pay, on demand, any Fees for the unauthorised use of the Cloud Services that would have been payable had you obtained a licence for such use from us, without right of set-off or deduction.
3 Cloud Services
3.1 The Cloud Services may be supplied by us from any geographical location, worldwide.
3.2 We shall be entitled to:
3.2.1 make changes to the Cloud Services, these Cloud Services Terms or any Cloud Services Description at any time and without notice; and
3.2.2 suspend or terminate your access or use of the Cloud Services for any reason, including but not limited to suspected or actual abuse or misuse of the Cloud Services or where such access and use could have, or is having, an adverse effect on our other customers or their end users (in each case, as determine by us in our sole discretion).
3.3 The Cloud Services do not include any support or similar services.
3.4 We may at any time in our sole discretion perform emergency and/or scheduled maintenance in relation to the Cloud Services (and any related software).
4 Your Data
4.1 You shall own all right, title and interest in and to all of your Data and shall have sole responsibility for the lawful acquisition, dissemination, legality, reliability, integrity, accuracy, fairness of processing and quality of your Data. You hereby grant to us a perpetual, royalty-free, fully-paid, transferable, irrevocable, sublicensable, worldwide licence to use your Data in any form and for any purpose.
4.3 You acknowledge and agree that, by receiving the Cloud Services, the data sharing arrangement described in clause 4 of the Data Addendum (under which we and you are Joint Controllers for the purposes of Data Protection Laws) will automatically apply and will allow us to use your Data for our business purposes. You may opt-out of such data sharing arrangement by entering into a bespoke agreement with us (under which our role will change to a Processor) in accordance with clause 4 of the Data Addendum. Capitalised definitions in this clause 4.3 that are not defined in these Cloud Services Terms shall have the meaning given to them in the Data Addendum.
5 Your Obligations
5.1 You shall:
5.1.1 provide us upon request with:
126.96.36.199 any assistance or co-operation requested by us in relation to the Agreement; and
188.8.131.52 all access to such records, premises, personnel and information as may be required by us to provide the Cloud Services or to verify your compliance with the Usage Restrictions or terms of the Agreement, including but not limited to your Data, security access information and any configuration information;
5.1.2 comply with all applicable laws and regulations with respect to your activities under the Agreement whether in force in England or in any other jurisdiction;
5.1.3 carry out all your obligations set out in the Agreement in a timely and efficient manner and within the timescales required by us;
5.1.4 ensure that your hardware, network, systems, and software comply with the relevant specifications provided by us from time to time, including those published on our Website;
5.1.5 ensure that you have all rights, permissions and licences to grant us the rights over our use of your Data and your Marks in accordance with these Cloud Services Terms, and that our use of your Data and your Marks in accordance with those terms would not cause us to breach any laws or infringe any rights (including but not limited to intellectual property rights) of any person; and
5.1.6 be solely responsible for procuring and maintaining your network connections and telecommunications from your own systems to our datacentres, and all issues, conditions, delays, delivery failures and all loss or damage arising from or relating to your network connections or telecommunications links or arising from your use or, or caused by, the internet.
5.2 We are not responsible for your Data. It is your responsibility to make backup copies of any of your data.
5.3 You hereby grant to us, a non-exclusive, royalty-free, fully-paid, sublicensable, worldwide licence to use your Marks as required by us to provide the Cloud Services and for publicity, marketing and advertising purposes using any medium or format (including in any customer win-list, whether published or disclosed online or offline). You warrant and represent that any use by us or our sub licensors of your Marks in accordance with this clause 5.3 shall not infringe the intellectual property or other rights of any third party and that you have the right to grant the rights under that clause.
6.1 The Cloud Services are provided on an "as is" and "as available" basis. To the fullest extent permissible under applicable law, we disclaim any and all promises, warranties, conditions and representations relating to the Cloud Services, whether express, implied, oral or written. In particular we do not make any promises as to the truth, accuracy, integrity, quality or completeness of the Cloud Services including but not limited to the information or other content that is accessible through them (or on the Website in connection with them) and you should not rely on the services and that content being accurate, truthful or complete.
6.2 You agree that your access and use of the Cloud Services is at your own risk. We do not have any knowledge of, or control over, the particular purposes for which the Cloud Services are used. Accordingly, we exclude any and all liability for any loss of any nature suffered by you as a direct or indirect result of your use of the Cloud Services or of making any decision, or refraining from making any such decision, based wholly or partly on the use of the Cloud Services.
6.3 By using the Cloud Services you acknowledge and accept the inherent risks, characteristics and limitations of the internet, particularly in terms of technical performance of the Cloud Services, response times to view, verify or transfer information, and the risks inherent in all connections and transfers via the internet. Accordingly:
6.3.1 we do not make any promises about the availability or accessibility of the Cloud Services or promise that your access to them will be delivered uninterrupted, in a timely manner or error-free nor promise that the Cloud Services, Cloud Services Description and/or the information obtained by you through the Cloud Services will meet your requirements. We shall not be 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 agree that the Cloud Services and Cloud Services Description may be subject to limitations, delays and other problems inherent in the use of such communications; and
6.3.2 We make no promises in respect of any harm that may be caused by the transmission of a computer virus, worm, time bomb, Trojan horse, cancelbot, logic bomb or any other form of programming routine designed to damage, destroy or otherwise impair a device’s functionality or operation including transmission arising from your download of any content, software you use to download the content, the Website or the servers that make it or the Cloud Services available. In this respect you agree that it is your responsibility to install suitable anti-virus and security software on your computer hardware and other devices to protect against any such bugs, viruses or other such harmful programming routines.
6.4 Nothing in the Agreement excludes or limits our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, or any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
6.5 Subject to clause 6.4, we will not be liable or responsible, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any (i) loss of income, loss of profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, or loss of, damage to or corruption of data, or (ii) any indirect or consequential loss or damage of any kind however arising.
6.6 Except as set out above in this clause 6, our maximum aggregate liability under or in connection with the Cloud Services whether in contract, tort (including negligence) or otherwise, for any and all claims shall be £100 (one hundred pounds Sterling).
7.1 You agree that you will indemnify, defend and hold us harmless (and our employees, officers, agents and suppliers) in full for any damages, losses, liabilities, fines, penalties, awards, interest, costs and expenses (including legal and other professional fees on a full indemnity basis) suffered, incurred or paid by us arising out of any use by us of your Data or your Marks in accordance with the Agreement (including the Data Addendum) and/or out of any breach by you of those terms (including but not limited to any actions you take which disrupt access to, or the functioning or availability of, the Cloud Services for any person).
8 Intellectual Property Rights
8.1 We retain ownership of all intellectual property rights in and to the Cloud Services and the Cloud Services Description.
8.2 We use technical means to monitor, detect instances of abuse and address and remedy abuses of the Cloud Services. We may use your Data to authenticate and monitor use of the Cloud Services. You acknowledge and agree that we may use such methods in addition to any other technical means whatsoever to monitor and detect abuses of the Cloud Services and our intellectual property rights.
We may terminate the Agreement for convenience at any time without notice. The provisions of this clause 9 shall apply in addition to those set out in clause 8 of the General Terms and Conditions.
10 Open source notices
Last updated: August 2020
1 Definitions and Interpretation
Any capitalised expressions that are not defined in this Data Addendum will have the meaning given to them in the Cloud Services Terms or the General Terms and Conditions or the meaning given to them (and equivalent expressions) in Data Protection Laws (as defined in clause 2 of this Data Addendum below).
2 General Obligations
2.1 You shall comply with all applicable data protection, security and privacy laws (and all related codes of practice and guidance issued by applicable regulators) in any jurisdiction including but not limited to the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the Network and Information Systems Regulations 2018, Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECRs”), the Data Protection (Charges and Information) Regulations 2018 (SI 2018/480) and all associated legislation, as amended or replaced from time to time (collectively "Data Protection Laws"). You shall not, by any act or omission, cause us to breach any Data Protection Laws and shall ensure our receipt of your Data in accordance with these Cloud Services Terms is lawful and does not infringe any individuals’ rights under those laws.
2.3 You shall implement and maintain at all times in accordance with Data Protection Laws a technical feature on each Website that expressly requests consent from every End User of the Website in respect of our use of your Data (as your Processor or a Joint Controller, as applicable) and a technical feature that allows the withdrawal of that consent (which must allow withdrawal as easily as consent was obtained). The consent that you shall obtain shall meet the standard of consent required under Data Protection Laws and you shall not access, read, collect, transfer or otherwise Process any of your Data in connection with the Cloud Services in respect of an End User (and shall not allow any of your Data to be received by us in respect of that user) until that user has provided such consent and provided always that consent has not subsequently been withdrawn. You shall not combine the request for such consent with consent in respect of any other Processing of or access to any data. You shall, promptly after receiving written notice from us, request and manage consent for any Processing of your Data that we perform as an independent Controller.
2.4 You shall maintain at all times a full record of any consent you request or obtain, together with a record of all withdrawals and requested withdrawals of consent in accordance with Data Protection Laws and shall, on receipt of written notice from us, promptly share with us part or all of such records, as required by us.
2.5 If a user withdraws their consent, you will notify us and provide to us in respect of such withdrawal any information we reasonably require to comply with our obligations under Data Protection Laws.
2.6 You shall co-operate and provide us with reasonable assistance in relation to any enquiry, request or notice we receive from an End User or Supervisory Authority, including the Information Commissioner’s Office.
2.7 At our written request, you will enter into applicable standard contractual clauses issued by the European Commission, any supervisory authority or other competent body from time to time (or take any other action, as we require) for the purposes of ensuring that any transfers of Personal Data between us comply with Data Protection Laws.
2.8 You shall not provide to us any Data including any Personal Data beyond the data provided to us as part of the Cloud Services except where the provision of that data is required by us to comply with Data Protection Laws or a specific request made pursuant to those laws. In particular, you shall never provide us with the name, email address or other direct contact information relating to any End Users except where this is required by law or by any court, Supervisory Authority or other competent authority. Nothing in this clause 2.8 shall reduce or otherwise affect our rights under clause 2.1 of this Data Addendum.
2.9 If we receive any requests from any End Users exercising their rights under Data Protection Laws in connection with the Cloud Services, we will notify you and provide you with the relevant details of the request. As between you and us, you shall be responsible for responding to and fulfilling to all such rights.
2.10 You shall promptly notify us in writing with full details if you fail to fulfil any of your responsibilities set out in Annex 2 to this Data Addendum.
2.11 Each party shall bear the costs of performance of its obligations under this Data Addendum except where expressly stated otherwise.
3 Terms applicable where we are a Processor
If we agree with you in writing (including in any applicable Order) that we will not make any use of your Data that is Personal Data for our own business purposes, we will Process that data as a Processor only and you shall be the Controller of that Processing. If we act as a Processor, we will enter into a separate data processing addendum with you and the provisions below in clause 4 of this Data Addendum shall not apply.
4 Terms applicable where we are a Controller
4.1 You acknowledge and agree that, subject to clause 3 of this Data Addendum, we and you are:
4.1.1 Joint Controllers in respect of any Processing of your Data in connection with the Cloud Services; and
4.1.2 independent Controllers in respect of our respective Processing of your Data where this is unrelated to the provision of the Cloud Services to you.
4.2 You acknowledge that:
4.2.1 you have primary responsibility for fulfilling our and your obligations as a Controller under Data Protection Laws, in accordance with best industry practice and the sharing particulars and allocation of Joint Controller Responsibilities set out in the Annexes to this Data Addendum; and
4.2.2 we may from time to time amend the Annexes to this Data Addendum by providing you with written notice of the changes, where such changes are required for you and/or us to comply with Data Protection Laws.
4.3 You will not use or attempt to use the Cloud Services in connection with any Website that targets children under the age of 16, that is aimed at audiences in that age range and/or that you know collects data from such children, or allow us to receive any data relating such children from the Website.
ANNEX 1 SHARING PARTICULARS
LAST UPDATED: August 2020
|The necessity and aims of the sharing of the Personal Data||For the purposes of our provision of the Cloud Services and, where relevant, to provide further Client Services, as an independent Controller. You may use the Cloud Services for the purposes you determine including to obtain information to target users of Client Sites, tailor content on those sites or for website optimisation, insight and/or analytics purposes.|
|Benefits of the data sharing to the Data Subjects||Clients receiving the Cloud Services and Clients Services will be better able to provide more effective, efficient and/or relevant services and user experience to End Users.|
|Third parties involved in the data sharing and reasons for sharing||Our subcontractors may receive the Device Data to perform certain Processing activities required to provide the Cloud Services and Client Services.|
|Details of data protection officers (or equivalent)||For us: Data Protection Officer whose email address is email@example.com. For you: as notified by you to us from time to time.|
|The lawful bases on which we/you rely||We and you rely on consent obtained from End Users to receive the Device Data and to Process that data to provide the Cloud Services to you. We rely on legitimate interests or another lawful basis set out in our respective privacy notices in respect of any Processing of Personal Data for which we are independent Controllers.|
|Governance arrangements||We operate an Integrated Management System (“IMS”) which is compliant with ISO 9001:2015 and ISO/IEC 27001:2013 the international standards for quality information security. We are committed to ensuring the fulfilment of customer needs and continuity of its business in the event of any personal data security breaches. The IMS ensures appropriate levels of protection in respect of data accuracy, data sharing, data storage and data security.|
ANNEX 2 ALLOCATION OF RESPONSIBILITIES BETWEEN JOINT CONTROLLERS IN RELATION TO PROCESSING AND ACCESS TO DATA FOR CLOUD SERVICES
LAST UPDATED: August 2020
|Controller obligations under Data Protection Laws relating to the Cloud Services||Responsible Joint Controller|
|Determining lawful basis of Processing||We and you|
|Maintaining a record of processing activities||We and you|
|Maintaining appropriate policies, registers and governance measures||We and you|
|Ensuring adequacy of protection for End Users of transfers of Personal Data outside the European Economic Area in accordance with Data Protection Laws||We and you|
|If relevant, designating a data protection officer and EU representative||We and you|
|Implementing technical and organisational security measures whilst your Data is in our possession||We|
|Appointing and managing sub-contractors to provide the Cloud Services and putting in place appropriate contractual terms with the same||We|
|Conducting assessments in relation to the requirement to notify (and notifying) Personal Data Breaches to End Users that affect all or a substantial number of Client Sites||We|
|Conducting assessments in relation to the requirement to notify (and notifying) Personal Data Breaches to End Users and/or Supervisory Authorities that affect your End Users only||You|
|Conducting data protection impact assessments and consultations with End Users and/or Supervisory Authorities||You|
|Obtaining consent from End Users including for the purposes of the GDPR and the PECRs, and development and integration of software and other technical means in relation to the same||You|
|Implementing technical and organisational security measures whilst your Data is in your possession or whilst it is transmitted to or from your Website||You|
|Providing our and your privacy notices to End Users, updating your privacy notices||You|
|Managing the acquisition of consent from End Users (including the provision of technical means to withdraw consent)||You|
|Recording evidence of consent and communicating to us indications of consent/withdrawal||You|
|Administering, fulfilling and managing any data subject rights relating to End User under Data Protection Laws||You|