Dataloft Ltd - terms and conditions


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Dataloft limited – Terms and Conditions for Online Subscription

These Terms and Conditions for Online Subscription (Service Terms) apply to each person or company (Subscriber) which registers with Dataloft to subscribe to an online service (Service) provided by Dataloft Limited incorporated and registered in England and Wales with company number 07046001 whose registered office is at Athenia House, 10–14 Andover Road, Winchester Hampshire SO23 7BS (Dataloft).

1. INTERPRETATION

1. The definitions and rules of interpretation in this clause apply in these Service Terms.

Authorised Users: the Subscriber’s employees and workers, plus any third party expressly approved in writing by Dataloft from time to time.

API: the API provided by Dataloft as part of the Service, the use of which is governed by these Service Terms and the appended API TOS.

API TOS: the Dataloft Inform API Terms of Service appended to these Service Terms.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential information in clause 10 .

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018.

Documentation: the documents provided by Dataloft as part of the Service.

Effective Date: the date the Subscriber registers on the Website for the Service.

Initial Subscription Term: the initial term is 12 calendar months from the Effective Date unless Dataloft has expressly agreed in writing to the contrary.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business day.

Renewal Period: the period described in clause 13.1.

Service: the subscription services provided by Dataloft to the Subscriber under these Service Terms via the Website, which include access to the Software.

Software: Dataloft’s online software applications, which include Inform. Inform provides analysis, charts, infographics, market commentary and market reports on the UK residential market.

Subscriber Data: the data inputted by the Subscriber or its Authorised Users, or Dataloft on the Subscriber’s behalf, for the purpose of using the Service or facilitating the Subscriber’s use of the Service.

Subscription fees: the subscription fees payable by the Subscriber to Dataloft for the User Permissions.

Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Service Policy: Dataloft's policy for providing support in relation to the Service as made available via the Website.

User Permissions: the permissions purchased by the Subscriber pursuant to clause 8.1 which entitle Authorised Users to access and use the Service in accordance with these Service Terms.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Website: www.dataloft.co.uk and any other website notified to the Subscriber by Dataloft from time to time.

2. Clause, schedule and paragraph headings shall not affect the interpretation of these Service Terms.

3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

5. Words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.

6. A reference to a statute or statutory provision is a reference to it as it is in force or amended from time to time and shall include all subordinate legislation made under it.

7. A reference to writing or written includes web messages and e-mail.

8. References to clauses and schedules are to the clauses and schedules of these Service Terms; references to paragraphs are to paragraphs of the relevant schedule to these Service Terms.

2. USER PERMISSIONS

1. Subject to the Subscriber purchasing the User Permissions in accordance with clause 3 and clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of these Service Terms, Dataloft hereby grants to the Subscriber a non-exclusive, non-transferable right to permit the Authorised Users to use the Service during the Subscription Term solely for the Subscriber's internal business operations.

2. For the duration of these Service Terms the Subscriber is also granted access to the API. The Subscriber’s access to Dataloft’s API is governed by these Service Terms and the API TOS.

3. In relation to the Authorised Users, the Subscriber undertakes that:

  1. the maximum number of Authorised Users that it authorises to access and use the Service and the Service Description shall not exceed the number of User Permissions it has purchased from time to time;

  2. it will not allow or suffer any User Permission to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Service and/or Service Description;

  3. each Authorised User shall keep a secure password for his or her use of the Service and that each Authorised User shall keep the password confidential;

  4. it shall maintain a written, up to date list of current Authorised Users and provide such list to Dataloft within 5 Business Days of Dataloft's written request at any time;

  5. it shall permit Dataloft to audit the Subscriber’s records and use of the Service in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Dataloft's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber's normal conduct of business;

  6. if any of the audits referred to in clause 2.3(5) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Dataloft's other rights, the Subscriber shall promptly disable such passwords and Dataloft shall not issue any new passwords to any such individual; and

  7. if any of the audits referred to in clause 2.3(5) reveal that the Subscriber has underpaid Subscription Fees to Dataloft, then without prejudice to Dataloft's other rights, the Subscriber shall pay to Dataloft within 10 Business Days of the date of the relevant audit an amount equal to such underpayment, calculated in accordance with Dataloft’s then-current prices.

4. The Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:

  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

  2. facilitates illegal activity;

  3. depicts sexually explicit images;

  4. promotes unlawful violence;

  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

  6. in a manner that is otherwise illegal or causes damage or injury to any person or property;

and Dataloft reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber's access to any material that breaches the provisions of this clause.

5. The Subscriber shall not:

  1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

    1. and except to the extent expressly permitted under these Service Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service, the Software and/or Service Description (as applicable) in any form or media or by any means; or

    2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service or the Software; or

2. access all or any part of the Service (including the API) in order to build, or assist a third party in building, a product or service which competes with the Service; or

3. use the Service (including API) to provide services to third parties (except as expressly permitted by these Service Terms); or

4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service, the API or any Software available to any third party except the Authorised Users, or

5. attempt to obtain, or assist third parties in obtaining, access to the Service, the API or any Software other than as provided under this clause 2.

6. The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Service Description and, in the event of any such unauthorised access or use, promptly notify Dataloft.

7. The rights provided under this clause 2 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.

3. ADDITIONAL USER SUBSCRIPTIONS

1. Subject to clause 3.2 and clause 3.3, the Subscriber may, from time to time during any Subscription Term, purchase additional User Permissions in excess of the number currently subscribed to and Dataloft shall grant access to the Service to such additional Authorised Users in accordance with the provisions of these Service Terms.

2. If the Subscriber wishes to purchase additional User Permissions, the Subscriber shall notify Dataloft in writing. Dataloft shall evaluate such request for additional User Permissions and respond to the Subscriber with approval or rejection of the request (such approval not to be unreasonably withheld).

3. If Dataloft approves the Subscriber's request to purchase additional User Permissions, then Dataloft will increase the Subscriber’s Subscription Fees accordingly.

4. SERVICE

1. Dataloft shall, during the Subscription Term, provide the Service in accordance with these Service Terms.

2. Dataloft shall use commercially reasonable endeavours to make the online Service available 24 hours a day, seven days a week, except for:

  1. planned maintenance carried out outside normal business hours business; and

  2. unscheduled maintenance performed outside Normal Business Hours if possible, with reasonable endeavours to give the Subscriber notice in advance.

3. Dataloft shall, as part of the Service and at no additional cost to the Subscriber, provide the Subscriber with Dataloft's standard customer support services during Normal Business Hours in accordance with Dataloft's Support Service Policy in effect at the time that the Service are provided. Dataloft may amend the Support Service Policy in its sole and absolute discretion from time to time.

5. SUBSCRIBER DATA

1. The Subscriber shall own all right, title and interest in and to all of the Subscriber Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.

2. In the event of any loss or damage to Subscriber Data, the Subscriber's sole and exclusive remedy shall be for Dataloft to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by Dataloft. Dataloft shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by Dataloft to perform services related to Subscriber Data maintenance and back-up).

3. Both parties will comply with all applicable requirements of Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

4. If Dataloft processes any personal data on the Subscriber's behalf when performing its obligations under these Service Terms, the parties record their intention that the Subscriber shall be the data controller and Dataloft shall be a data processor and in any such case:

  1. the personal data my be transferred or stored outside the EEA or the country where the Subscriber and the Authorised Users are located in order to carry out the Services and Dataloft’s other obligations under these Service Terms; and

  2. Dataloft’s processing activities shall be as follows:

    1. Scope of processing - as particularised in these Service Terms, as may be varied from time to time by agreement between the parties.

    2. Nature and purpose of processing - to supply the Services in accordance with these Service Terms.

    3. Duration - for the duration of these Service Terms.

    4. Types of personal data - Authorised User’s names, login, information, contact information.

    5. Categories of data subject - Authorised Users.

5. Without prejudice to the generality of clause 5.3, the Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Dataloft for the duration and purposes of these Service Terms so that Dataloft may lawfully use, process and transfer the personal data in accordance with these Service Terms on the Subscriber’s behalf.

6. Without prejudice to the generality of clause 5.3, Dataloft shall, in relation to any personal data processed in connection with the performance by Dataloft of its obligations under these Service Terms:

  1. process that personal data only on the documented written instructions of the Subscriber unless Dataloft is required by the laws of any member of the European Union or by the laws of the European Union applicable to Dataloft and/or domestic UK Law to process personal data (Applicable Laws). Where Dataloft is relying on Applicable Laws as the basis for processing personal data, Dataloft shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Dataloft from so notifying the Subscriber;

  2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

    1. the Subscriber or Dataloft has provided appropriate safeguards in relation to the transfer;

    2. the data subject has enforceable rights and effective legal remedies;

    3. Dataloft complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

    4. Dataloft complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data;

3. assist the Subscriber, at the Subscriber’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

4. notify the Subscriber without undue delay on becoming aware of a personal data breach;

5. at the written direction of the Subscriber, delete or return personal data and copies thereof to the Subscriber on termination of the agreement unless required by Applicable Law to store the personal data; and

6. maintain complete and accurate records and information to demonstrate its compliance with this clause 5.

7. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data, and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

8. The Subscriber consents to Dataloft appointing third-party processors to assist in its provision of the Services under these Service Terms and Dataloft confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5. As between the Subscriber and Dataloft, Dataloft shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.

9. Either party may, at any time on not less than 30 days' notice, revise this Clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Service Terms).

6. DATALOFT'S OBLIGATIONS

1. Dataloft undertakes that the Service will be performed substantially in accordance with their description in these Service Terms and with reasonable skill and care.

2. The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Dataloft's instructions, or modification or alteration of the Service or any Software by any party other than Dataloft or Dataloft's duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Dataloft will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Subscriber's sole and exclusive remedy for any breach of the undertaking set out in clause 1. Notwithstanding the foregoing, Dataloft:

  1. does not warrant that the Subscriber's use of the Service will be uninterrupted or error-free; or that the Service and/or the information obtained by the Subscriber through the Service will meet the Subscriber's requirements; and

  2. 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 the Subscriber acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

3. These Service Terms shall not prevent Dataloft from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Service Terms.

4. Dataloft warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Service Terms.

7. SUBSCRIBER'S OBLIGATIONS

The Subscriber shall:

1. (in order to enable Dataloft to provide the Service, including but not limited to Subscriber Data, security access information and configuration services) provide Dataloft with:

  1. all necessary co-operation in relation to these Service Terms; and

  2. all necessary access to such information as may be required by Dataloft;

2. comply with all applicable laws and regulations with respect to its activities under these Service Terms;

3. carry out all Subscriber obligations in a timely and efficient manner. In the event of any delays in the Subscriber's provision of such obligations, Dataloft may adjust any specified or agreed timetable as reasonably necessary;

4. ensure that the Authorised Users use the Service in accordance with the terms and conditions of these Service Terms and the Service Description and shall be responsible for any Authorised User's breach of the same;

5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Dataloft, its contractors and agents to perform their obligations under these Service Terms, including without limitation the Service;

6. ensure that its network and systems comply with the relevant specifications provided by Dataloft from time to time; and

7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Dataloft's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Subscriber's network connections or telecommunications links or caused by the internet.

8. CHARGES AND PAYMENT

1. The Subscriber will pay the Subscription Fees to Dataloft for the User Permissions in accordance with this clause 8.

2. The Subscriber will pay the Subscription Fees monthly in advance by direct debit.

3. If the Subscriber misses a payment then without prejudice to any other rights and remedies of Dataloft:

  1. Dataloft may, without liability to the Subscriber, disable the Subscriber's password, account and access to all or part of the Service and Dataloft shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and

  2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Dataloft's bankers from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

4. All amounts and fees stated or referred to in these Service Terms:

  1. shall be payable in pounds sterling;

  2. are non-cancellable and non-refundable;

  3. are exclusive of value added tax, which shall be added to Dataloft's invoice(s) at the appropriate rate.

5. Dataloft shall be entitled to increase the Subscription Fees, including the fees payable in respect of the additional User Permissions purchased pursuant to clause 3, after the Initial Subscription Term upon 28 days' prior notice to the Subscriber.

9. PROPRIETARY RIGHTS

1. The Subscriber acknowledges and agrees that Dataloft and/or its licensors own all intellectual property rights in the Service. Except as expressly stated herein, these Service Terms does not grant the Subscriber any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service.

2. Dataloft confirms that it has all the rights in relation to the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Service Terms.

10. CONFIDENTIALITY

1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Service Terms. A party's Confidential Information shall not be deemed to include information that:

  1. is or becomes publicly known other than through any act or omission of the receiving party;

  2. was in the other party's lawful possession before the disclosure;

  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

  4. is independently developed by the receiving party, which independent development can be shown by written evidence; or

  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these Service Terms.

3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Service Terms.

4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

5. The Subscriber acknowledges that details of the Service, and the results of any performance tests of the Service, constitute Dataloft's Confidential Information.

6. Dataloft acknowledges that the Subscriber Data is the Confidential Information of the Subscriber.

7. This clause 10 shall survive termination of these Service Terms, however arising.

8. No party shall make, or permit any person to make, any public announcement concerning these Service Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11. INDEMNITY

1. The Subscriber shall defend, indemnify and hold harmless Dataloft against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Subscriber's use of the Service, provided that:

  1. the Subscriber is given prompt notice of any such claim;

  2. Dataloft provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and

  3. the Subscriber is given sole authority to defend or settle the claim.

2. Dataloft shall defend the Subscriber, its officers, directors and employees against any claim that the Service infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:

  1. Dataloft is given prompt notice of any such claim;

  2. the Subscriber provides reasonable co-operation to Dataloft in the defence and settlement of such claim, at Dataloft's expense; and

  3. Dataloft is given sole authority to defend or settle the claim.

3. In the defence or settlement of any claim, Dataloft may procure the right for the Subscriber to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Service on 2 Business Days' notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.

4. In no event shall Dataloft, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:

  1. a modification of the Service by anyone other than Dataloft; or

  2. the Subscriber's use of the Service in a manner contrary to these Service Terms or Dataloft's reasonable instructions from time to time; or

  3. the Subscriber's use of the Service after notice of the alleged or actual infringement from Dataloft or any appropriate authority.

5. The foregoing and clause 12.4.2 states the Subscriber's sole and exclusive rights and remedies, and Dataloft's (including Dataloft's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12. LIMITATION OF LIABILITY

1. This clause 12 sets out the entire financial liability of Dataloft (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Subscriber:

  1. arising under or in connection with these Service Terms or the provision of the Service;

  2. in respect of any use made by the Subscriber of the Service or any part of it; and

  3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Service Terms.

2. Except as expressly and specifically provided in these Service Terms:

  1. the Subscriber assumes sole responsibility for results obtained from the use of the Service by the Subscriber, and for conclusions drawn from such use. Dataloft shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Dataloft by the Subscriber in connection with the Service, or any actions taken by Dataloft at the Subscriber's direction;

  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Service Terms; and

  3. the Service is provided to the Subscriber on an "as is" basis.

3. Nothing in these Service Terms excludes the liability of Dataloft:

  1. for death or personal injury caused by Dataloft's negligence; or

  2. for fraud or fraudulent misrepresentation.

4. Subject to clause 12.2 and clause 12.3:

  1. Dataloft shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Service Terms; and

  2. Dataloft's total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Service Terms shall be limited to the total fees paid for the User Permissions during the 12 months immediately preceding the date on which the claim arose.

13. TERM AND TERMINATION

1. These Service Terms shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, these Service Terms shall be automatically renewed for successive periods of three months (each a Renewal Period), unless:

  1. either party notifies the other party of termination, in writing, at least 3 months before the end of the Initial Subscription Term or any Renewal Period, in which case these Service Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

  2. otherwise terminated in accordance with the provisions of these Service Terms;and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

    and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

2. Without affecting any other right or remedy available to it, either party may terminate these Service Terms with immediate effect by giving written notice to the other party if:

  1. the other party fails to pay any amount due under these Service Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

  2. the other party commits a material breach of any other term of these Service Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

  3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

  4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

  5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

  6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

  7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

  8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

  9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or

  10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13(2)(3) to clause 13(2(9) (inclusive).

3. On termination of these Service Terms for any reason:

  1. all licences granted under these Service Terms shall immediately terminate;

  2. the Dataloft Inform API TOS will immediately terminate;

  3. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

  4. Dataloft may destroy or otherwise dispose of any of the Subscriber Data in its possession unless Dataloft receives, no later than ten days after the effective date of the termination of these Service Terms, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. Dataloft shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Subscriber shall pay all reasonable expenses incurred by Dataloft in returning or disposing of Subscriber Data; and

  5. 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.

14. FORCE MAJEURE

Dataloft shall have no liability to the Subscriber under these Service Terms if it is prevented from or delayed in performing its obligations under these Service Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Dataloft or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Subscriber is notified of such an event and its expected duration.

15. CONFLICT

If there is an inconsistency between these Service Terms and any other document then these Service Terms shall prevail.

16. VARIATION

No variation to these Service Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. WAIVER

No failure or delay by a party to exercise any right or remedy provided under these Service Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. RIGHTS AND REMEDIES

Except as expressly provided in these Service Terms, the rights and remedies provided under these Service Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

19. SEVERANCE

1. If any provision (or part of a provision) of these Service Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20. ENTIRE AGREEMENT

1. These Service Terms and any documents referred to in either, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

2. The Subscriber acknowledges and agrees that in registering for the Service it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of these Service Terms or the Service, other than as expressly set out in these Service Terms.

21. ASSIGNMENT

1.The Subscriber shall not, without the prior written consent of Dataloft, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations with respect to the Service.

2. Dataloft may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations with respect to the Service.

22. NO PARTNERSHIP OR AGENCY

Nothing in these Service Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23. THIRD PARTY RIGHTS

These Service Terms do not confer any rights on any person or party (other than the parties to these Service Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24. NOTICES

1. Any notice required to be given under these Service Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Service Terms, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in these Service Terms, or sent by email to inform@dataloft.co.uk.

2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by email shall be deemed to have been received the business day after the email was sent.

25. GOVERNING LAW

These Service Terms and any dispute or claim arising out of or in connection with them or the provision of the Service (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

26. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Service

Dataloft Inform API Terms of Service Agreement

1. Acceptance of Terms

  1. This Dataloft Inform API Terms of Service document (the “API TOS”) is an agreement you must accept in order to use the Dataloft Inform API (as described below). Dataloft Ltd only provides the Dataloft Inform API to you subject to this API TOS. By accepting this API TOS or by accessing or using the Dataloft Inform API, you agree to be bound by this API TOS.

  2. This API TOS is incorporated into Dataloft's Service Terms.

  3. Upon termination of the Service Terms, this API TOS will immediately terminate.

2. API License

  1. As long as you follow the Service Terms and this API TOS, Dataloft grants you a limited, non-exclusive, non-assignable, non-transferable license to use the API to develop, test, and support integration of the Dataloft inform API with your website. It may also be used for other purposes that are expressly and explicitly agreed with Dataloft.

  2. Your license is subject to the limitations set out in this API TOS and the Service Terms (and in particular your attention is drawn to clause 2.5 of the Service Terms).

  3. The API is provided 'as-is'. Dataloft gives no representation or warranty as to its availability or functionality and all warranties which might otherwise be implied by law are hereby excluded.

  4. Dataloft does not offer any support for the API.

3. Scope of acceptable use

You may not use the Dataloft Inform API in a manner that accesses or uses any information beyond what Dataloft Ltd allows under this API TOS or the associated Documentation; that breaks or circumvents any of Dataloft Inform’s technical, administrative, process or security measures; that disrupts or degrades the performance of the Dataloft Inform Service or the Dataloft Inform API; or that tests the vulnerability of Dataloft Inform’s systems or networks.

4. Malware

You may not transmit any viruses or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data.

5. Reverse engineering

You may not attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how in the Dataloft Inform API or portion thereof;

6. Functionality

You may not use the Dataloft Inform API to replicate or compete with core products or services offered by Dataloft or assist a third party to do the same.

7. Commercial Use

Without prejudice to the restrictions in the Service Terms (including without limitation clause 2.5 thereof), you may not sell, rent, lease, sublicense, redistribute, or syndicate access to the Dataloft Inform API.

8. Advertising

As a subscriber, you may use content from Dataloft Inform in adverts and email campaigns (subject to clause 10 below) but you may not use advertisements that resemble or may be reasonably likely to confuse users as being a Dataloft Inform service message.

9. Distribution of your application

You may not distribute or allow access to the Dataloft Inform APIs to anyone other than, if applicable, the company on whose behalf you entered into this API TOS. Anyone who wants to access our API must agree to be bound by this API TOS.

10.  Use of Dataloft Inform content

You must acknowledge all data and graphics derived from the API as being sourced from Dataloft or Dataloft Inform.

11.  Ownership

As between you and us, we own all rights, title, and interest, including all intellectual property rights, in and to, the (1) Dataloft Inform API, documentation, and all elements and components thereof; (2) Dataloft Inform Services; and (3) Dataloft brand features, being the look and feel, getup and design of the platform (collectively, the “Dataloft Inform Materials”). Except for the express licenses granted in this API TOS, Dataloft does not grant you any right, title, or interest in the Dataloft Inform Materials.

12.  Term and Termination

1. Duration of Terms

This API TOS takes effect on the effective date of the Service Terms or, if earlier, on the date you first access the Dataloft Inform API. This API TOS will continue until terminated as set forth herein.

2. Your Right to Terminate

You may terminate this API TOS by discontinuing use of our APIs. For the avoidance of doubt, termination of this API TOS does not terminate your subscription under the Service Terms, but termination of the Service Terms will immediately terminate this API TOS.

3. Our Right to terminate

We may terminate this API TOS at any time and cease to permit access to the API upon one week's prior notice to you.

4. Suspension; Termination

We may change, suspend or discontinue the Dataloft Inform API and suspend or terminate your use of the Dataloft Inform API, at any time and for any reason, without notice.

5. Effect of Termination

Upon termination of this API TOS, all rights and licenses granted to you will terminate immediately.

6. Modification of the API TOS.

We may change, add to or delete this API TOS or any portion thereof from time to time in our sole discretion. If we make a material change to this API TOS, we will provide you with reasonable notice prior to the changes either by emailing the email address associated with your account. You acknowledge that these updates and modifications may adversely impact how you access, use, and communicate with the Dataloft Inform API. If any change is unacceptable to you, your only recourse is to cease all use of the Dataloft Inform API (and if you exercise this option your subscription under the Service Terms shall be unaffected save that you will not be permitted to access the API). Your continued access or use of the Dataloft Inform API will mean that you agree to the updates and modifications.

7. Disclaimer of Warranties; Limitations of Liability; Idemnity

  1. No warranties

    The Dataloft inform API and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and Dataloft inform expressly disclaims any and all warranties, whether express or implied. You acknowledge that Dataloft does not warrant that the Dataloft inform API will be uninterrupted, timely, secure, error-free or virus-free.

  2. Limitation on liability

    Under no circumstances and under no legal theory (whether in contract, tort, or otherwise) shall Dataloft be liable to you or any third party for (a) any indirect, incidental, special, exemplary, consequential or punitive damages, including lost profits, lost sales or business, or (b) for any amount in the aggregate in excess of the fees actually paid by you under the Service Terms in the six (6) months preceding the event giving rise to your claim, or (c) any matter beyond our reasonable control. The provisions of this section allocate the risks under this TOS between the parties, and the parties have relied on these limitations in determining whether to enter into this TOS.

  3. Indemnity

    You agree to defend, hold harmless and indemnify Dataloft, and its subsidiaries, affiliates, officers, agents, employees, and suppliers, from and against any third party claim arising from or in any way related to your or your users’ use of the API.

 

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