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Cloud Services Terms 20150216 : Thursday, February 12, 2015

Cloud Services Terms (from February 2015)

These Cloud Services Terms, together with our General Terms and Conditions, and your order apply to your use of our cloud based services. These Cloud Services Terms will prevail to the extent of any conflict or inconsistency with our General Terms.

Our General Terms contain provisions which limit our liability to you. Our General Terms also sets out definitions used in these Data Licence Terms.

1 Interpretation

The definitions and rules of interpretation in this clause apply in this agreement.

Agreement the Order and these Cloud Services Terms.
Licence Entitlements the licence to use the Services as described in clause 2 and the Services Description.
Request an electronic request in the prescribed format to use the Services, accompanied by a Licence Key, and as further described in the Services Description.
Server computers controlled, owned, licensed or leased by you which receive requests directly from a person browsing a website under your control, and in turn are licensed to transmit Requests to the Software to consume the Services.
Services the services described in the Order which are supplied by an application programming interface from or any other URL notified to you by 51D from time to time.
Services Description the functionality and usage requirements for the Services, referred to at
Software the software which facilitates and makes available the real-time and online responses to a Request, so as to deliver that the Services. The Software does not include code samples which may be used by you to interact with the Services.
Term the term of this Agreement as defined in clause 9.1.
Usage Restrictions use restrictions, limitations and exclusions which apply to the Services and the Software in this Agreement.
your Data the data transmitted by you in a Request for the purpose of using the Services or to configure your use of the Services.

In the event of an inconsistency between these terms and the Order, the terms of the Order shall prevail to the extent of any conflict or inconsistency.

2 Licence Entitlements

2.1 Upon acceptance of your Order, 51D grants you a non-exclusive, royalty-free, non-transferable and revocable licence to use the Services and the Software from Servers for the Term and in accordance with the terms of this Agreement.

2.2 You warrant and represent that you will:

a) not exceed the Usage Restrictions;

b) will keep your Licence Key secure and not release or communicate it to any third party, and be liable for any loss or damage caused to 51D for misuse by you or any third party;

c) will use the Services, Software and Services Description solely for your own internal business purposes and not further or otherwise;

d) shall make Requests to the Services for real-time online device detection only and not offline device detection; and

e) implement error handling on your Servers foreshadowing failure of the Services and Software.

2.3 You warrant that you will not allow or suffer the Services to be accessed by computers which are not Servers.

2.4 You shall not access, store, distribute or transmit any malware, data, or any other material whatsoever during the Term which (a) facilitates illegal activity; or (b) interferes with the Services, and 51D reserves the right, without liability or prejudice to its other rights to you, to disable your access to the Services without notice and without liability in the event that 51D suspects you or persons associated with you breach the provisions of this Agreement.

2.5 You are responsible for the use and deployment of Licence Keys. You shall pay such Fees arising from unauthorised use of the Services on demand, without right of setoff or deduction.

2.6 You are entitled to one and only one licence (and one Licence Key) to use the Services.

3 Services

3.1 51D shall during the Term provide the Services and make available the Services Description to you on and subject to the terms of this Agreement.

3.2 51D shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

a) planned maintenance carried out during planned maintenance periods, notified in advance; and

b) unscheduled maintenance performed outside business hours in London, provided that 51D has used reasonable endeavours to give you at least 6 business hours’ notice in advance.

3.3 51D warrants that the Services will function substantially as set out in the Services Description. 51D shall rectify any material non-conformances within a reasonable time, after having received such information and documentation as is required by 51D to reproduce to the said non-conformance. In the event that the alleged non-conformance was due to your failure to comply with the usage requirements set out in the Services Description, 51D will be entitled to charge for its services associated with diagnosing and communicating with you at its then current rates or other such sum as may be agreed in writing.

3.4 51D does not as part of the Services provide you with any support for the Services. Assistance from participants of 51D online forums published at /support/forum may lend assistance to you to resolve issues using the Services. 51D may amend this support services policy in its absolute discretion from time to time.

3.5 The Services may be supplied from any geographical location, worldwide.

3.6 51D shall be entitled to make changes to the Services on 30 days’ notice in writing.

3.7 The Usage Restrictions include a limit of responses from the Software to a maximum of:

a) 1,000 Requests per minute, where the Services attract a Fee;

b) 100 Requests per minute, where the Services do not attract a Fee.

There will be no requirement for the Services to service Requests and/or respond to Requests in excess of these thresholds.

4 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 51D a perpetual, royalty-free, transferable, irrevocable licence to use your Data in an anonymised form for any purpose.

4.2 Each of the parties shall comply with the terms of the Data Protection Act and associated legislation, as amended from time to time. If 51D is provided with any personal data as part of a Request or the Services by you, you shall be the data controller and 51D shall be a data processor and in any such case:

a) you agree that personal data may be processed, transferred or stored outside the EEA or the country where the servers of 51D are situated in order to carry out the Services and other obligations of 51D under this Agreement;

b) you shall ensure that you have all necessary authorisation and consents to process and transfer personal data to 51D so that 51D may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;

c) you shall ensure that the relevant third parties have been informed of, and have given their consent to such use, processing, and transfer as required by all applicable data protection legislation, and that processing of data in accordance with this Agreement satisfies the Data Protection Principles; and

d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

5 Obligations of 51D

5.1 51D warrants that the Services will be delivered substantially in accordance with this Agreement and with reasonable skill and care, where the Services attract a Fee. All other warranties and conditions are hereby excluded. No warranty given by 51D in respect of Services which do not attract a Fee.

5.2 The foregoing warranty shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Services Description or written guidance issued by 51D. If the Services do not conform to the said warranty, 51D will, at its expense, use reasonable endeavours to correct any such non-conformance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the said warranty.

5.3 In addition to the foregoing, 51D (a) does not warrant that your use of the Services will be uninterrupted or error-free or that the Services, Services Description and/or the information obtained by you through the Services will meet your requirements; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you agree that the Services and Services Description may be subject to limitations, delays and other problems inherent in the use of such communications.

5.4 51D warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

5.5 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.

5.6 Our maximum aggregate liability under or in connection with this Agreement, or any collateral contract, 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.

6 Your Obligations

6.1 You shall:

a) provide 51D upon request with:

i. all reasonable co-operation in relation to this Agreement; and

ii. all reasonable access to such information as may be required by 51D,

b) in order to provide the Services, including but not limited to your Data, security access information and configuration services;

c) comply with all applicable laws and regulations with respect to its activities under this Agreement whether in force in England or elsewhere;

d) carry out all other responsibilities set out in this Agreement in a timely and efficient manner;

e) ensure that its hardware, network, systems, and software comply with the relevant specifications provided by 51D from time to time; and

f) be solely responsible for procuring and maintaining its network connections and telecommunications from its own systems to 51D datacentres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

6.2 You shall not exceed the Usage Restrictions. In the event that you exceed the Usage Restrictions, 51D may without notice to you in its sole discretion take such steps to:

a) refuse to supply the Services in respect of any Request in excess of any Usage Restrictions;

b) downgrade or restrict the performance of the Services in any way(s) it sees fit;

c) in respect of unpaid services, require you to purchase a licence to accommodate use in excess of the Usage Restrictions; or

d) substitute its uncharged solution for its paid solution (if any).

7 Intellectual Property Rights

7.1 We use technical means to monitor, detect instances of abuse and address and remedy abuses of this the Software and the Services. Licence Keys are used to authenticate and monitor use of the Services. 51D may use such methods in addition to any other technical means whatsoever to monitor and detect abuses of the Services and its intellectual property rights. You consent to use of such techniques both now and in the future as we develop and implement the same.

8 Charges and payment

8.1 You will pay the Fees set out in the Order in advance of the term any requirement on the part of 51D to supply the services.

8.2 Where the Services attracts a Fee, you shall provide to 51D valid, up-to-date and complete credit card details to 51D and any other relevant valid, up-to-date and complete contact and billing details reasonably required. You hereby irrevocably authorises 51D to use such credit card details to process payments for the Term and renewals of the Term.

8.3 51D shall be under no obligation to provide any Services while payments are outstanding. If 51D has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of 51D, 51D may in its absolute discretion, and without liability and without notice to you from time to time:

a) suspend the whole or any part or parts of the Services; and/or

b) makes changes to the levels of performance of the Services as it sees fit; and/or

c) take any step or steps set out in subparagraphs 6.2(a)to 6.2(d) above.

8.4 All Fees are non-cancellable and non-refundable.

9 Term and termination

9.1 This Agreement will commence on the date of payment for the Services for the Initial Term. Other than as may be specified in the Order, upon expiry of the Initial Term, this Agreement will automatically renew on our then current terms for the same length of time as the Initial Term (“the Term”) until terminated by you by cancelling your next renewal.

9.2 51D may terminate this Agreement on 7 days’ notice in writing for its own convenience. On termination of this Agreement for any reason (1) licences granted to you under this Agreement shall immediately terminate; (2) you will return and make no further use of the Services or Software (3) cease use of other items (and all copies of them) belonging to the other party, and irretrievably destroy the same, and certify that you have done so in writing upon request; and (3) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced