These Terms of Service apply to Dataloop Software Limited’s (Dataloop.IO) subscription services, a company incorporated and registered in England and Wales with number 8741559 whose registered office is at 60 Windsor Avenue, London, SW19 2RR, UK.
Please read carefully this agreement before using Dataloop.IO. By signing up, you (The Client) agree to become bound by the Terms of Service of this agreement, to the exclusion of all other terms. They may be updated from time to time and Clients should visit this page to ensure they have read the most recent version.
1. Beta, Trial & Free Users
- For Clients using the Software under a trial or beta set-up, or otherwise using it without charge, this clause 1 will apply and, in the event of any inconsistency, takes precedence over clauses 6 and 11.
- Except as expressly provided in this clause 1, no other warranties, undertakings, conditions or terms of any kind, whether express or implied, statutory or otherwise will apply, and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, satisfactory quality or fitness for purpose of the Software or any part thereof are excluded. In particular, no condition, warranty, representation or other term is given or entered into to the effect that the Software will be of satisfactory (or any other) quality, that they will be fit for any particular purpose (whether that purpose is made known to Dataloop.IO or not), that use of the Software will be uninterrupted or error-free or that they will perform to or operate in accordance with any particular standard.
- The Client acknowledges that the Software is an untested, experimental and pre-release version and access is provided free of charge for test and evaluation purposes only. Accordingly, and subject to clause 11.1, Dataloop.IO shall not be liable to Client (whether for breach of contract, negligence, misrepresentation or for any other reason) for any loss or damage whatsoever incurred or sustained by Client in connection with this Agreement and/or its use of the Software whether such loss or damage is direct, indirect or consequential and including, without limitation: (a) loss of profit; (b) loss of business; (c) lost data; (d) rerun time; (e) inaccurate output; (f) work delays, or (g) wasted staff or management time.
2. Definitions and interpretation
- Where a term used in these Terms starts with the capital letters, it has a defined meaning, set out in clause 2.2.
- “Agent” means a software agent installed on Client’s servers or equipment and activated through the Services to monitor the Client’s servers or equipment;
“Annual Subscription Fee” means the fee set out in the Order Form payable in respect of each twelve-month period during the Term;
“Client” means the organisation set out in a signed Order Form;
“Contract” means the contract created by a binding Order Form together with these Terms;
“Error” means a material failure of the Software to provide the functionality set out in Dataloop.IO’s online documentation relating to the Software;
“Initial Term” means the period described as such and set out in the Order Form;
“Insolvency Event” means in relation to a person, means any of the following (a) a meeting of creditors of that person being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that person; (b) a chargeholder, receiver, administrative receiver or other similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that person; (c) that person ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (d) that person or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of, an administrator; (e) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that person; or (f) the happening in relation to that person of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;
“Order Form” means an order form for Dataloop.IO’s monitoring services signed on behalf of both parties;
“Plugins” means executable scripts or binaries that are created and added to the web application by either Dataloop.IO or the customer. The plugins are pushed down and executed on the agent based on configuration changes in the web application;
“Renewal Term” means any subsequent periods of twelve-months after the Initial Term as set out in clause 7;
“Services” means the services to be provided by Dataloop.IO as set out in the Order Form, including remote browser-based access to the Software;
“Software” means Dataloop.IO’s monitoring platform comprising a cloud-based web application accessible by Clients and Agents deployed on Client’s equipment;
“Term” means the duration of an Order Form, comprising the Initial Term and any Renewal Terms.
3. Supply of the Services
- These Terms contain general terms relating to the provision by Dataloop.IO from time to time of Services. Before Dataloop.IO provides any such Services, Dataloop.IO and the Client will in each case first agree a written Order Form.
- If an Order Form conflicts with the provisions of these terms then the provisions of that Order Form will take precedence in relation to the Services to be supplied under that Order Form.
- Each agreed Order Form will form a separate contract (a “Contract”) between the Client and Dataloop.IO on the terms contained in the Order Form and in these Terms.
- Dataloop.IO will user reasonable efforts to supply the Services and in accordance with each Contract.
- Dataloop.IO reserves the right to remove or disable any Plugins or hosted content from the Software where where it suspects that such material risks interfering with the proper functioning of the Software or is in contravention of the terms of this agreement.
4. Licence and scope of authorised use
- Subject to full payment of the applicable fees and subject to the restrictions set out in these Terms, the Client is granted a non-exclusive, non-transferable licence, during the Term, to access and use the Software for its own internal monitoring purposes only. Except as expressly set out in this clause 4 and in clause 9, all rights in and to the Software are reserved to Dataloop.IO.
- Only the Client is licensed to access and use the Software. Use by the Client includes use by (a) its employees; and (b) any contract staff who are working for the Client.
- The Client shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Client or any of its authorised users in order to access or use the Software (“ID”). The Client acknowledges and agrees that it will be solely responsible for all activities that occur under such ID. The Client shall promptly inform Dataloop.IO upon becoming aware of any unauthorised access to or use of the Software, and provide all reasonable assistance to Dataloop.IO to bring an end to such unauthorised access or use.
- The Client shall not:
(a) permit any third party (except as expressly set out in clause 4.2) to access or use the Software or use the Software on behalf of any third party (which includes operating any form of facility or service on behalf of any third party and operating a SaaS service to third parties);
(b) copy, modify, adapt or create derivative works from the Software or its contents;
(c) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software except to the extent that the Client is permitted to do so under applicable law in circumstances under which Dataloop.IO is not lawfully entitled to restrict or prevent the same;
(d) attempt to interfere with the proper working of the Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Software or any website, computer system, server, router or any other internet-connected device; or
(e) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the Software;
and shall not permit any third party to do any of the foregoing.
- Where any scripts or other software components are supplied to the Client with an open source licence, then the terms of that open source licence will apply instead of these Terms.
- The Client irrevocably consents for the Term to Dataloop.IO and the Software accessing and monitoring the Client’s systems and equipment (including communication over the Client’s networks between the Agents and the Software hosted by or on behalf of Dataloop.IO) as reasonably required to provide the Services. Where the systems and/or networks are owned, operated or controlled by a third party, the Client represents and warrants to Dataloop.IO that it has the consent of each such third party and will indemnify Dataloop.IO against any costs and liabilities arising out of any claim that Dataloop.IO is not properly authorised to have such access and use.
- In each case the Order Form will set out the charges for the Services to be supplied in accordance with that Order Form. The charges will be due on the dates (or on the happening of the events) specified in that Order Form.
- Unless otherwise specified in the relevant Order Form, charges will be due in advance at the start of every year for everything done in relation to the Services to be supplied in accordance with the relevant Order Form by Dataloop.IO or on Dataloop.IO’s behalf during that month. Dataloop.IO may invoice the Client for the charges as soon as they become due. The Client must pay the invoices within 30 days of receiving them.
- The amounts specified in each Order Form do not include VAT, or other sales taxes or any other taxes on supplies, unless expressly set out in an Order Form. The Client will pay any applicable VAT or other sales taxes to Dataloop.IO as well as the amounts concerned.
6. Warranties and other terms
- The Client warrants that its access and use, and that of its employees, agents and contractors, of the Software shall comply with all applicable laws, regulations and codes of practice of any competent authority.
- Dataloop.IO warrants that the Services will be provided with reasonable care and skill and that it will use reasonable efforts to maintain availability of remote access to the Software.
- Dataloop.IO warrants that in relation to the Software it will for a period of three months from first access, be free from any defect which has a materially adverse effect on its use or operation for the purpose for which it was supplied (as evident from the relevant Order Form).
- If the warranty in clause 6.3 is breached, Dataloop.IO will have a reasonable time to fix the problem and (if necessary) to re-perform any relevant Services (or in the case of software a corrected version or a practicable way to work around the problem) (together a “Remedy”). This will be done without any additional charge to the Client.
- Dataloop.IO will use reasonable efforts to respond by email to a support request by email to firstname.lastname@example.org in respect of any Error within 24 business hours of notification during Dataloop.IO’s normal UK office hours and will proceed diligently in attempting to diagnose and resolve the Error.
- Dataloop.IO will keep confidential any confidential information which the Client supplies to Dataloop.IO in connection with these Terms and the Client must do the same in relation to any confidential information which Dataloop.IO supplies to the Client. Confidential information will include all information marked as being confidential and any other information which might reasonably be assumed to be confidential. The obligations as to confidentiality in these Terms will not apply to any information which:
(a) is available to the public other than because of any breach of these Terms; (b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (d) is trivial or obvious; or (e) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirements).
8. Term and termination
- Each Contract will commence on the Effective Date as set out in the relevant Order Form and will continue for the Initial Term. At the end of the Initial Term and each subsequent Renewal Term, each Contract will automatically renew unless either party terminates the Contract by written notice to the other party not less 45 days prior to the end if the Initial Term or relevant Renewal Term (as appropriate) than indefinitely until terminated in accordance with this clause 8.
- Dataloop.IO or the Client may terminate a Contract if:
(a) the other materially breaches any term of the Contract and it is not possible to remedy that breach; or
(b) the other materially breaches any term of the Contract and it is possible to remedy that breach, but the other fails to do so within 30 days of being asked to do so.
8.3 Either party may terminate any or all Contract(s) if an Insolvency Event occurs in respect of the other party.
9. Consequences of termination
- Termination of a Contract will not affect any accrued rights or liabilities which either Dataloop.IO or the Client may have by the time termination takes effect. Upon termination of all current Contracts for any reason:
(a) the Client shall immediately cease to access, and discontinue all use, of the Software and the Services; (b) all amounts payable to Dataloop.IO by the Client shall become immediately due and owing.
10. Intellectual property rights
- Ownership of Intellectual Property Rights will be dealt with as follows:
(a) Subject to clause 10.1(b) and clause 10.1(c), the Client acknowledges that all Intellectual Property Rights in the Software and any modifications belong and shall belong to Dataloop.IO or its licensors, and the Client shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement;
(b) The Software requires Plugins to be used in order for the Agents to communicate properly with the Software. Where Plugins are written by Dataloop.IO for the Client, Dataloop.IO will own the Intellectual Property Rights in those scripts and the Client is hereby granted a perpetual, irrevocable, non-exclusive and worldwide licence to use such Plugins for its internal monitoring purposes. Where Plugins provided by Dataloop.IO and/or by the Client have been developed by a third party, then they will be licensed to the Client on the basis of any open source licence accompanying the copies of the scripts (and not by the provisions of these Terms) and the Client will comply with those open source licences.
(c) Where and to the extent Plugins are written by or on behalf of the Client, the Client or its licensor will retain ownership of Intellectual Property Rights in such Plugins, and Dataloop.IO will have perpetual, irrevocable, non-exclusive, royalty-free and worldwide licence (with right to sub-license) to use such Plugins to monitor general performance of the Software and to use them to create Plugins for other clients and users of the Software (and to sub-license use to clients and users of the Software and resellers and service providers of Dataloop.IO now or in the future and third parties acting on Dataloop.IO’s behalf).
- Dataloop.IO will indemnify the Client against any loss or damage suffered or incurred by the Client as a result of any claim by a third party that the Client’s use of the Software in accordance with these Terms infringes the Intellectual Property Rights of any third party. It is a condition of this indemnity that
(a) the Client fully co-operates with Dataloop.IO in defending or settling the claim, (b) Dataloop.IO is notified immediately in writing of any claim and is given complete authority required for the conduct of the claim, (c) Dataloop.IO will have the sole control of the conduct of any claim and all negotiations for its settlement or compromise, and (d) the Client and its group companies, agents and contractors make no admission of liability in connection with the claim and do not otherwise materially prejudice its defence or settlement.
- Dataloop.IO’s liability (a) for death or personal injury caused by its negligence; (b) for fraudulent misrepresentation or for any other fraudulent act or omission; or (c) for any other liability which may not lawfully be excluded or limited is not excluded or limited by these Terms, even if any other term of these Terms would otherwise suggest that this might be the case.
- Subject to clause 11.1, Dataloop.IO shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
(a) loss of profit;
(b) loss of anticipated savings;
(c) loss or waste of management or other staff time; or
(d) indirect, consequential or special loss;
arising out of or relating to these Terms, whether or not such loss was foreseeable or if Dataloop.IO was advised of its possibility.
- Subject to clauses 11.1 and 11.2, Dataloop.IO’s total liability arising out of or relating to these Terms or their subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited (a) in respect of all claims in respect of any Order Form in a Contract Year, to the amounts payable by the Client under or in connection with that Order Form in respect of the relevant Contract Year and (b) in the aggregate across all Order Forms and in during the entire duration of the Agreement to £20,000 (twenty thousand pounds sterling). Contract Year” means the relevant period of twelve months starting on the start date of the relevant Order Form or the appropriate anniversary thereof. For the purpose of this clause, if more than one claim arises from the same event or series of events, then all such claims shall be treated as one, which will be treated as having arisen on the date on which the first relevant claim arose.
- Subject to clauses 11.1 and 11.2, Dataloop.IO shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) where personnel of the Client commit any acts in relation to the Software or the Services not expressly authorised by Dataloop.IO.
- Except as expressly set out in these Terms and subject only to clause 11.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Software or the Services or to anything supplied or provided by Dataloop.IO under these Terms. In particular, Dataloop.IO does not warrant that the operation of the Software or Services will be uninterrupted or error-free, or that they will meet the Client’s requirements.
12. Other terms
- The Client may not sub-contract, assign or otherwise transfer any of its rights or obligations under these Terms without Dataloop.IO’s prior written consent.
- Dataloop.IO will not be liable to the Client for any breach of these Terms which arises because of any circumstances which Dataloop.IO cannot reasonably be expected to control.
- All notices and consents relating to these Terms must be in writing. All variations to these Terms must be agreed, set out in writing and signed on behalf of both Dataloop.IO and the Client before they take effect.
- If a party: (a) delays in enforcing its rights under these Terms (whether in relation to a breach by the other party or otherwise); or (b) agrees not to enforce its rights, or to delay doing so, then unless the party concerned expressly agrees otherwise, that delay or agreement shall not be treated as waiving the rights of the party concerned.
- Any waiver of a party’s rights in relation to a particular breach of these Terms shall not operate as a waiver of any subsequent breach.
- These Terms and any relevant Order Form sets out all of the terms that have been agreed between Dataloop.IO and the Client in relation to the subjects covered by it. No other representations or terms shall apply or form part of any Contract between the parties. The Client acknowledges that it has not been influenced to enter into these Terms by anything Dataloop.IO has said or done or committed to do, except as expressly recorded herein.
- In the event of any provision of these Terms being held to be void, voidable or unenforceable this shall not affect the validity or enforceability of any other provision of these Terms or of the remainder of these Terms as a whole.
- No term of these Terms is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Terms.
- These Terms is governed by English law. Both Dataloop.IO and the Client submit to the exclusive jurisdiction of the English courts in relation to any dispute concerning these Terms but either party is also entitled to apply to any court worldwide for injunctive and other remedies in order to protect or enforce its Intellectual Property Rights.
Last updated: 18th November 2013
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