Cloud Services Terms 20180920 : Thursday, September 20, 2018
Cloud Services Terms (from September 2018)
These Cloud Services Terms, together with our General Terms and Conditions govern your access and use of our cloud-based services.
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.
In the event of any conflict or inconsistency between these Cloud Services Terms, any Order (if applicable) and the General Terms and Conditions, the following order of precedence shall apply to the extent necessary to resolve the conflict or inconsistency: first, the Order; second, these Cloud Services Terms; and third, the General Terms and Conditions.
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.|
|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.|
|Term||the term of the Agreement as defined in clause 9.1.|
|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:
a) comply with the Usage Restrictions;
b) 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;
c) use the Cloud Services Description solely for the purposes of receiving the Cloud Services in accordance with the terms of the Agreement; and
d) implement error handling in accordance with good industry practice to mitigate against the effects of any failure of the Cloud Services.
2.3 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.
2.4 If you do not comply with the Usage Restrictions, we may in our sole discretion and without liability to you:
a) refuse to supply the Cloud Services, including in respect of any Request;
b) downgrade or restrict the performance of the Cloud Services in any way(s) we see fit;
c) require you to purchase a licence before permitting any further use of the Cloud Services beyond the Usage Restrictions; or
d) substitute the Cloud Services for alternative services.
2.5 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:
a) make changes to the Cloud Services, these Cloud Services Terms or any Cloud Services Description at any time and without notice; and
b) 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).
4.1 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 us a perpetual, royalty-free, fully-paid, transferable, irrevocable, sublicensable, worldwide licence to use your Data in any form and for any purpose.
4.2 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, the Network and Information Systems Regulations 2018 and all associated legislation, as amended or replaced from time to time (collectively "Data Protection Laws").
4.3 You shall not provide any personal data (as defined by Data Protection Laws) to us in connection with the Cloud Services. Nothing in this clause 4.3 shall reduce or otherwise affect our rights under clause 4.1.
5 Your Obligations
5.1 You shall:
a) provide us upon request with:
i. any assistance or co-operation requested by us in relation to the Agreement; and
ii. 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;
b) 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;
c) carry out all your obligations set out in the Agreement in a timely and efficient manner and within the timescales required by us;
d) 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;
e) 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
f) 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:
a) 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
b) 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.
6.5 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.
6.6 Subject to clause 6.5, 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.
6.7 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, 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 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.
9 Term and termination
9.1 The Agreement made under and incorporating these Cloud Services Terms will commence on the date of your first access and/or use of the Cloud Services (including your reproduction, download and/or use of any related Tools) or, if earlier, on execution of an Order where applicable, and shall continue into force until terminated in accordance with its terms.
9.2 We may, for convenience, terminate the Agreement without notice. On termination of the Agreement for any reason (1) all licences granted to you under the Agreement shall immediately terminate; (2) you will make no further use of the Cloud Services (3) you will cease use of other items (and all copies of them) belonging to us, and irretrievably destroy the same, and certify that you have done so in writing upon our 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.