1.2 Your attention is drawn to the limitations of liability provision at paragraph 11 of these Terms
2. Who are we?
2.1 The Website and the Service are made available to you by Access UK Ltd (Access Group). Access UK Ltd is a company registered in England and Wales (registered no. 2343760) whose registered office is at The Old School, Stratford St Mary, Essex, CO7 6LZ, United Kingdom. In these Terms, we use the expressions “we“, “us“, “Access Group” and “aCloud Communicate” to refer to Access UK Ltd and we use the term “you” to refer to any person accessing, browsing or otherwise using the Service, Website, aCloud Communicate API, applications and software provided through or in connection with the Service, including through a mobile device or application.
2.2 If you have any questions about the Website or the Service, or if you would like to speak to us for any other reason, please contact us using one of the following means:
- email us at: email@example.com
- write to us: at Access Group, The Old School, Stratford St Mary, Colchester, Essex,CO7 6LZ, United Kingdom
3. What is the aCloud Communicate service?
3.1 The aCloud Communicate Service (and aCloud Communicate Beta Service) is a real-time group messaging service for business. The Service is available in both free and subscription versions.
3.2 For more information about aCloud Communicate and the Services, we encourage you to visit our “About aCloud Communicate” page at /about/
4. Your responsibilities
4.1 To visit the Website and use the Service you must be aged 13 or over. If you are under 13 you must possess legal parental or guardian consent and be fully able and competent to enter into the Terms set forth in this agreement.
4.2 By accessing, browsing or otherwise using the Service, Website, applications and software provided through or in connection with the Service, including through a mobile device or application, you warrant to us that:
- you are aged 13 or over; or
- if you are under 13, your legal parent or guardian has consented to your use of the Service, Website, applications and software and agrees to procure that you will comply with these Terms and that he/she shall be responsible and liable for any loss, damage or injury caused by your breach of these Terms.
4.3 When you use the Website or the Service you undertake:
- if you are agreeing to these Terms on behalf of other individual users under your control, to procure that such individuals comply with these Terms and to be jointly and severally liable with the relevant individual where such individual breaches these Terms;
- if you are an individual user through a team membership, company subscription or through a third party website or application, notwithstanding the provisions of paragraph 4.3(a), you shall be jointly and severally liable with the person detailed in paragraph 4.3(a) for any breach by you of these Terms;
- to use the Website and/or the Service only for authorised and lawful purposes and not in any way which is contrary to applicable local laws;
- if you register an account through the Website or the Service, to keep your registered username and password details secure, not to allow any third party to use them and to promptly notify us if you lose your account details or if you become aware that any third party is making unauthorised use of your account;
- not to access the Service using the account details of another person without their express permission;
- to promptly notify us accordingly if you learn of any unauthorised users or any users violating these Terms;
- not to use the Website and/or the Service in a way that infringes the rights of any other person or restricts or inhibits any other person’s use and enjoyment of the Website and/or the Service;
- if accessing the Website and/or the Service in an automated fashion, to only do so using integration tools provided by Access UK Ltd for that purpose and in line with any associated guidelines;
- if you are using the Website and/or the Service through a team membership, company subscription or through a third party website or application, to follow your own company’s or such third party’s (as applicable) policies, guidelines and procedures concerning content you post to the Service or Website;
- not to post any material onto the Website or the Service which is unlawful, offensive, threatening, libellous, defamatory, obscene or which infringes any third party rights (such as third party intellectual property rights) anywhere in the world;
- not to copy, use or otherwise deal with any Website or Service content other than for your own personal or internal business use unless you have our prior written consent to do so. In particular, you must not use Website or Service content for any commercial exploitation without our prior written consent; and
- not to copy, modify or redistribute the Website or the Service or link to or frame the Website or the Service from any other website unless you have our prior written consent to do so.
4.4 When you use the Website or the Service you agree:
- by providing your e-mail address, to aCloud Communicate sending you service related notices, including any notices required by law. We may also use your e-mail address to send you other information including details of changes to the Service and special offers. You may opt out of these notices by sending an e-mail to firstname.lastname@example.org entitled “Opt-Out”
- that, if your company is a paying subscriber to the Service, all User Content is the property of the company to which you belong. If your company is not a paying subscriber to the Service, User Content is owned by the user that posted the content. If a user account is disabled, the User Content will remain the responsibility of the company if they are a paying subscriber, otherwise it will remain the responsibility of the user whose account was disabled;
- that, if you are accessing the Service through a third party website or application, all User Content transmitted through the Service using the third party website or application is the property of the third party.
- that, if using the aCloud Communicate API to give access to third parties, you undertake:
- to procure that all third party users of the Service through your use of the aCloud Communicate API comply with the Terms; and
- agree to be jointly and severally liable with any user (or users) where such user (or users) breaches the Terms.
5.1 You agree to indemnify aCloud Communicate against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us arising out of or in connection with:
- any breach by you of any of your obligations set above; or
- any breach by a third party user accessing the service through your use of the aCloud Communicate API; or
- any other breach by you of these Terms.
6. Our rights
6.1 In providing you with access to the Website and/or the Service, we reserve the following rights, and in accessing, browsing or otherwise using the Website and/or the Service you grant to us and agree that we shall have the following rights:
- the right to refuse or withdraw your access to the Website and/or the Service in accordance with applicable laws for any reason at any time (with or without notice) if in aCloud Communicate’s sole and absolute discretion you violate or breach any of these Terms, including without limitation the following:
- attempting to interfere, bypass or compromise the security of the Website or the Service;
- taking any action that imposes an unreasonable load on our infrastructure;
- uploading or distributing viruses, worms or any software code of a destructive nature using the Service;
- impersonating another user.
- the right to amend or update the Website, the Service, fees, billing methods or these Terms from time to time;
- the right without notice to remove content, materials or user accounts for any reason whatsoever in our sole and absolute discretion, including without limitation content and materials which are unlawful, offensive, threatening, libellous, defamatory, obscene or which infringe third party rights, and user accounts used to propagate any such content or materials;
- the right without notice to immediately suspend your account or throttle your file hosting and network access to the Service if your bandwidth usage significantly exceeds the average usage of other aCloud Communicate users, as determined by Access UK Ltd;
- the right to access any or all of your accounts in order to respond to your requests for technical support so long as we maintain appropriate administrative physical and technical safeguards for the protection of the security and confidentiality and integrity of your data; and
- the right to terminate without notice free user accounts and delete any associated data if that account has been inactive or disabled for ninety (90) days or more.
7.1 The Service is available in both free and subscription versions. In respect of the subscription version of the Service, a fee (the “Recurring Fee”) shall be payable in advance on a quarterly, six monthly or annual basis as agreed in writing between you and us from time to time.
7.2 In relation to the subscription version of the Service:
- either you will be using the Service as an individual user in which case you will be responsible for payment of any fees due to us for provision of the Service and will be the billing party of record; or
- you will be using the Service as a user through your company or employer’s subscription in which case the domain administrator at your company or employer will be responsible for payment of any fees due to us for provision of the Service to you and/or use of its domain and will be the billing party of record.
The billing party of record in each of paragraph 7.2(a) and 7.2(b) is referred to herein as the “Customer”.
7.3 Unless alternative billing arrangements are agreed in writing between aCloud Communicate and the Customer, e.g via a aCloud Communicate Order Form, the Customer agrees to the following:
- the Customer shall besolely responsible for promptly providing any contact or billing information changes or updates (including phone number, email address, credit card numbers) using the online facility provided in the Service;
- the Customer agrees to pay all fees in respect of us providing access to the Service in advance as well as any chargeable products ordered through the Website or the Service and hereby provides aCloud Communicate with express irrevocable authorisation to charge the Customer or the Customer’s payment provider quarterly, six monthly or annual (as applicable) in advance in relation to fees payable in respect of us providing the Service and at the time of purchase of any chargeable product. In respect of team or company users, payment shall not be contingent on any events other than the number of users per billing cycle within the Company’s Domain. Charges will automatically renew using the Customers credit card (or other such method agreed in writing by both parties). Customer will also pay all applicable taxes related to the Recurring Fee;
- the Customer shall notify aCloud Communicate of any billing problems or discrepancies within 90 days of the charges appearing on their account. If such billing problems or discrepancies are not brought to aCloud Communicate’s attention within such period, the Customer shall be deemed to have waived the right to dispute such problems or discrepancies; and
- For the purposes of this paragraph 7.3(d), “Renewal Date” shall mean the first date of the next billing cycle. The Customer may cancel his subscription by giving aCloud Communicate one month’s written notice (which notice shall be given by e-mailing email@example.com no less than three (3) days prior to the Renewal Date). Cancellation shall occur on the first Renewal Date falling after the expiration of the notice period detailed above. All cancellation requests will be processed within five (5) working days and will be confirmed to the Customer via e-mail.
7.4 If a aCloud Communicate Order Form has been agreed in writing between aCloud Communicate and the Customer, the Customer agrees to the following for each aCloud Communicate Order Form:
- A fee (the “Order Fee”) shall be payable by you and calculated in accordance with the aCloud Communicate Order Form for provision of the Service. Where the number of users (or other such measure) of the Service exceeds the maximum number of permitted users (or other such measure) agreed between us and you from time to time, we shall be permitted to invoice you for an amount in respect of the provision of the Service to the additional users (or other such measure) (the “Adjustment Fee”) either:
- at the same time as sending you an invoice for the Order Fee for the next billing cycle; or
- prior or subsequent to such time
- save that we shall at all times be entitled to invoice you retrospectively and you shall be liable to pay any Adjustment Fee in full within 7 days of the date of any such invoice.
- you agree to pay all fees in respect of us providing access to the Service in advance by no later than 5 Business Days prior to the commencement of the next billing cycle (which for the avoidance of doubt, shall be the billing dates listed on the aCloud Communicate Order Form).
7.5 If you use the aCloud Communicate API to give access to third parties as part of a commercial service, in the absence of a aCloud Communicate Order Form which contemplates such scenario we reserve the right in our sole and absolute discretion to renegotiate the pricing model applicable to your access to the Service.
7.6 aCloud Communicate reserves the right to:
- charge the Customer an additional reasonable fee to cover the cost of any payment correctly requested by us which failed or was rejected due to the Customer not having provided us with any changes or updates to his contact or billing information, or there being insufficient funds to make the due payment; and
- immediately without notice cease to provide the Service and aCloud Communicate API access to the Customer where any payment has not been paid by the due date. In this event, the Customer is required to remove any function calls to the aCloud Communicate API, remove all references and links to the Website, the Service and/or aCloud Communicate from their own products or websites and remove any printed or electronic material available to your customers, users or suppliers within 5 Working Days of us requesting you to do so in writing. The Customer shall be responsible for any losses (including attorney fees, court costs or other costs) incurred by aCloud Communicate in collecting payment of delinquent undisputed amounts.
7.7 All Recurring Fees and other amounts paid or duly payable to aCloud Communicate shall be non-refundable.
7.8 You shall make all payments under these Terms without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, you shall, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required.
8.1 In the event that a aCloud Communicate Order Form exists between aCloud Communicate and the Customer, the term of the agreement between us is stated in the aCloud Communicate Order Form. The term shall automatically renew for consecutive terms as stated in the aCloud Communicate Order Form unless terminated as follows:
- immediately, by us pursuant to paragraph 7.6(b) of these Terms;
- by us on giving you one month’s written notice, on expiry of such notice; or
- by you on giving us one month’s written notice, on expiry of the term during which the notice expires.
Whilst we have implemented commercially reasonable technical and organisational measures to secure your personal information and User Content from unauthorised use, we cannot guarantee that unauthorised third parties will never be able to defeat those measures. You acknowledge that you provide your personal information and User Content at your own risk.
10. License grant
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferrable, limited, personal license to use the software (in object code format only) supplied as part of the Website or the Service, including without limitation any desktop notification software or software installed on mobile devices. Access UK Ltd reserves all rights not expressly granted herein and may terminate this license at any time without reason.
11. Intellectual property rights
11.1 All Intellectual Property Rights existing in or relating to the Website and the Service are owned by or licensed to Access UK Ltd. For the purposes of this paragraph 10 “Intellectual Property Rights” means copyright, trade marks, design rights, database rights, copyrights, photographs, audio, videos, music, patents and other intellectual property rights, whether or not registered rights, as well as the right to apply for any such registrable rights.
11.2 If and to the extent that any Intellectual Property Rights in the Website or the Service vest in you (whether by operation of law or otherwise), you hereby undertake to hold such Intellectual Property Rights in trust for us and to immediately on request assign those rights back to us with full title guarantee.
11.3 You agree and undertake not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publically display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service or Website, excluding any User Content.
11.4 You have no right (and shall not permit) any third party to translate, copy, adapt, reverse engineer, decompile, disassemble, modify, make derivative works of, adapt or make error corrections to any software supplied as part of the Service in whole or in part. This restriction shall not apply to the extent that you cannot be prohibited from doing such acts under applicable law.
11.5 You agree that any ideas, comments or improvements you suggest to the Website or the Service are gratuitous, unsolicited and without restriction. aCloud Communicate is free to disclose and/or use such ideas publicly and is under no obligation to provide compensation to you.
12. Limitations of liability
12.1 WHILST WE USE REASONABLE SKILL AND CARE TO MAKE THE WEBSITE AND THE SERVICE AVAILABLE TO YOU, WE CANNOT GUARANTEE THAT IT WILL BE PROVIDED ON A CONTINUOUS, FAULT-FREE BASIS.
12.2 WE DO NOT MAKE OR GIVE ANY REPRESENTATIONS, WARRANTIES, TERMS OR CONDITIONS (COLLECTIVELY, “PROMISES“) IN RELATION TO THE WEBSITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION THOSE FOR FITNESS FOR PURPOSE, SUITABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR SPYWARE OR RELIABILITY OF THE WEBSITE AND THE SERVICE.
12.3 IN ADDITION, WE EXCLUDE ALL LIABILITY FOR LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA AND ANY AND ALL CONSEQUENTIAL, SPECIAL AND/OR INDIRECT LOSSES (REGARDLESS OF WHETHER OR NOT WE WERE MADE AWARE OF THE POSSIBILITY OF SUCH LOSSES).
12.4 NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS 11.1, 11.2 AND 11.3, IF AND TO THE EXTENT THAT WE ARE LIABLE FOR ANY AMOUNTS TO YOU UNDER APPLICABLE LAW ARISING OUT OF, OR IN CONNECTION WITH YOUR USE OF THE WEBSITE AND/OR THE SERVICE, YOU AGREE THAT WE SHALL BE LIABLE ONLY FOR SUCH AMOUNTS AS WERE REASONABLY FORESEEABLE AT THE TIME THAT YOU SUFFERED HARM. IN ANY EVENT OUR TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED £100,000.
12.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF LOSS AND, WHERE THIS IS THE CASE, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN ANY EVENT, NOTHING IN THESE TERMS SHALL EXCLUDE OR OTHERWISE LIMIT OUR LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR ANY OTHER LIABILITY THE EXCLUSION OR LIMITATION OF WHICH IS NOT PERMITTED BY APPLICABLE LAW.
13. Third party websites of applications
The Website or the Service may contain links to other websites. We accept no responsibility or liability for any material supplied by or contained on any third party website or application which is linked from or to the Website, or any use of your personal data by such third parties. You acknowledge and agree that you will be bound by the terms and conditions of any third party website or application you visit and that you will not hold us liable for any liability arising from your use of such third party sites, content, dealings and advertisements or promotions. You acknowledge and agree that aCloud Communicate will not be responsible for any loss or damage of any sort relating to your dealings with such third parties.
15. Updates to these Terms
We may amend these Terms from time to time for legal, business or other operational reasons by giving 1 month’s notice (the “Change Period”) either by publishing a notice on the Website or by sending you an email. Continued use of the Website or the Service after the expiry of the Change Period by you shall be deemed to be acceptance of the amended version of these Terms. We recommend that you check the Website regularly to keep informed of any changes to these Terms. We also recommend that you print and keep a copy of these Terms for your records. These Terms were last updated on: 21 October 2011.
16. Other important terms
16.1 If any court or competent authority finds that any provision of these Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Terms shall not be affected.
16.2 If any invalid, unenforceable or illegal provision of these Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.3 Only you and us shall be entitled to enforce these Terms. No third party shall be entitled to enforce any of these Terms, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.4 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between you and us, constitute either of you and us the agent of the other, nor authorise either of you and us to make or enter into any commitments for or on behalf of the other.
16.5 These Terms and any rights, licenses and obligations granted hereunder may not be transferred or assigned by you but may be assigned by aCloud Communicate without restriction.
16.6 These Terms constitute the entire agreement between you and us and supersede and extinguishes all previous drafts, agreements, arrangements and understandings between you and us, whether written or oral, relating to its subject matter.
16.7 You agree that you shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in these Terms. You shall shall not have any claim for innocent or negligent misrepresentation based upon any statement in these Terms.
16.8 We shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of our obligations under these Terms if such delay or failure results from events, circumstances or causes beyond our reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, provided that if the period of delay or non-performance continues for 8 weeks, you may terminate this agreement by giving 14 days’ written notice to us.
16.9 Without prejudice to any other rights or remedies that we may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of these Terms by you. Accordingly, we shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms.