Cloud Terms

DIFFUSION CLOUD SERVICE

Terms and Conditions

These terms and conditions govern your use of Diffusion Cloud as a cloud service and are made between Push Technology Limited, a company registered in England and Wales with registered office address at Wework 4th Floor, 2 Aldgate Tower, Leman Street, London, United Kingdom, E1 8FA (company number 06034919) (“PUSH”) and you, the company accessing and/or using the Diffusion Cloud cloud services (“Customer” or “You”). If you do not agree to the terms set out here please do not sign up for the Diffusion Cloud cloud services. If you are contracting as a Consumer please contact PUSH separately prior to registering for Diffusion Cloud. By registering for Diffusion Cloud you warrant that you are not contracting with PUSH in your capacity as a Consumer.

1 Definitions

1.1 In this Agreement, the following terms shall have the following meanings:

1.1 In this Agreement, the following terms shall have the following meanings:

• ‘Agreement’ means these terms and conditions and the schedules and any documentation expressly incorporated herein by reference and shall include any amendments or supplementary agreements specifically referenced hereto and effected as provided in clause 15.1.
• ‘Confidential Information’ means all confidential information (however recorded, preserved or disclosed) supplied to one party (“Receiving Party”) by or on behalf of the other party (“Disclosing Party”) whether before or after the date of the Agreement in relation to the Agreement, including all commercial information whatsoever (including accounts, financial information, operating statistics, production and marketing records, forecasts, analyses, compilations and studies, notes, contacts and personnel data, information or opinions as to the affairs of the Disclosing Party, all technical and scientific information whatsoever (including specifications, prototypes, models, drawings, computer software (unless permitted by Additional Rights), visual demonstrations, and samples, designs, plans, processes, formulae, know-how, production, marketing and other scientific and technical techniques used by or known to the Disclosing Party)) whether or not proprietary or protected, or capable of protection, by Intellectual Property Rights and all other information to the extent such commercial, technical, scientific or other information relates to all or part of the actual, past or proposed business affairs and activities of the Disclosing Party and all copies thereof. For the avoidance of doubt, Diffusion Cloud and any derivative works, material, idea, data or other information as well as research, developments, trade secrets, financial, technical, commercial or business affairs relating thereto shall be the Confidential Information of PUSH and the Customer’s use and disclosure of the same shall be subject to the terms of the Agreement.
• “Consumer” has the definition given to it in the Consumer Rights Act 2015. ‘‘Customer’s Group’ means the Customer’s subsidiaries, holding company and other subsidiaries of its holding company.
• “Data Processing Supplement” means the document setting out the parties’ obligations in relation to the processing of personal data, as appended to this Agreement as a supplement and incorporated by reference.
• ‘Defect’ means any reproducible material defect, error or problem with Diffusion Cloud which substantially hinders or prevents the Customer from accessing or using a material part of the functionality of Diffusion Cloud.
• ‘Holding company’ and ‘Subsidiary’ mean a “Holding Company” and “Subsidiary” as defined in section 1159 of the Companies Act 2006.
• ‘Intellectual Property Rights’ means all patents, trade marks and service marks, business and domain names, design rights, copyrights, trade secrets, know how, database rights, inventions and all other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, subsisting in any part of the world.
• “Message” means each message which is sent through Diffusion Cloud and each message which is received through Diffusion Cloud.
• “Overage” means the additional sum payable by the Customer to PUSH in the event that the Customer’s use of Diffusion Cloud exceeds their Permitted Use Allowance. The Overage rates are as set out on the Website, as amended from time to time in accordance with this Agreement, and shall depend upon the subscription chosen by the Customer.
• “Payment Provider” means Stripe, PayPal, the IBM marketplace, IBM Bluemix or such other payment provider as PUSH may nominate from time to time on reasonable notice to the Customer.
• “Permitted Use Allowance” means the number of Messages that may be used by the Customer in each month of th Subscription Period in accordance with the subscription selected by the Customer.
• ‘Diffusion Cloud’ means: (a) the SaaS-delivered version of PUSH’s Diffusion software (or such other product name or software file name that may be applied to such product) and is provided on a software-as-a-service basis and accessed via the Website and/or API URLs specified by PUSH from time to time, (b) all or any part(s) of any products of the same type and specification; (c) any other products and related documentation developed by PUSH and which PUSH may permit the Customer, by express notice in writing, to use pursuant to this Agreement; (d) any upgrade, update or fix provided by PUSH ; (e) any Third Party Software; and (f) the associated documentation relating to each of them.
• “Subscription Fee” means the sum payable by the Customer to PUSH for the Customer’s subscription for the Diffusion Cloud service, as may be amended from time to time in accordance with the terms of the Agreement.
• “Subscription Period” means the period for which the Customer has subscribed for the Diffusion Cloud service together with any subscription renewal.
• “Support Fee” means the sum payable by the Customer to PUSH in consideration of Support and Maintenance Services, as may be amended from time to time in accordance with the terms of this Agreement.
• “Support and Maintenance Agreement” means the agreement between PUSH and Customer relating to Support and Maintenance Services, the terms of which are incorporated into this Agreement by reference.
• “Support and Maintenance Services” means the support and maintenance services to be provided by PUSH to the Customer in connection with Diffusion Cloud, as more particularly described in the Support and Maintenance Agreement and in clause 4.
• ‘Third Party Cloud Provider’ means any entity hosting cloud services through which the Customer interacts to download Diffusion Cloud.
• ‘Third Party Software’ means all software products owned by a third party or other computer code which embedded within or otherwise provided by PUSH with Diffusion Cloud and which is available under standard proprietary licence terms or public licences such as free and open source software licences. Any Third Party Software provided pursuant to the Agreement is detailed in Schedule 1 (as may be amended from time to time by PUSH).
• ‘Trade Marks’ means any trade mark registrations and applications, including the trade names and unregistered marks “Push” and “Diffusion” and the phrase “Powered by Diffusion” owned by PUSH from time to time.

• “Website” means the website at https://dashboard.diffusion.cloud, https://management.ad.diffusion.cloud and/ or such other URL as nominated by PUSH from time to time.

1.2 References to the words “include” or “including” shall be construed as being without limitation to the generality of the preceding words. Words imparting the singular include the plural and vice versa.

1.3 Unless the context otherwise requires, all references to a particular Clause, Schedule or Supplement are references to the corresponding Clause, Schedule or Supplement in or to the Agreement.

1.4 The headings in the Agreement are for ease of reference only and shall not affect its interpretation.

1.5 Any references, express or implied, to an enactment includes references to:

1.5.1 that enactment as amended, extended or applied by or under any other enactment before or after the Agreement;

1.5.2 any enactment which that enactment re-enacts (with or without modification); and

1.5.3 any subordinate legislation made (before or after the Agreement) under any enactment, including one within clause 1.5.1 or clause 1.5.2 above, but does not include any enactment after the date of the Agreement to the extent that it is retrospective.

1.6 Unless the context otherwise requires references to PUSH and the Customer include their permitted successors and assigns.

2 Commencement and Duration

2.1 This Agreement commences when the Customer first registers for Diffusion Cloud and selects the “Accept” button on the registration page and continues for the Subscription Period, unless terminated earlier in accordance with clause 14, and thereafter shall automatically continue for further successive periods equal to the Subscription Period unless Customer cancels its subscription prior to the end of its current Subscription Period by deleting its account.

3 Access and Use Rights

3.1 PUSH grants to the Customer, and the Customer accepts, a non-exclusive, non-transferable limited right for the Subscription Period to access and use PUSH’s instance of Diffusion Cloud for, (a) its own internal business purposes or (b) an evaluation of Diffusion Cloud, in accordance with the terms and conditions of the Agreement up to the Permitted Use Allowance selected by the Customer for its subscription.

3.2 The Customer may extend the benefit of the Agreement to the members of the Customer’s Group subject to:

3.2.1 giving notice to PUSH of the identity and address of the member of the Customer’s Group to which the Agreement has been extended (“Additional Customer”);

3.2.2 the Customer remaining liable to PUSH for the acts and omissions of any member of the Additional Customer and indemnifying PUSH in full in respect of any losses, damages or expenses incurred by PUSH as a result of the negligent or unized use of Diffusion Cloud by or on behalf of any Additional Customer its employees, agents and contractors; and

3.2.3 if required by PUSH, the Additional Customer agreeing in writing to be bound by the terms of the Agreement.

3.3 Where Diffusion Cloud incorporates Third Party Software, the Customer acknowledges that the Third Party Software is licensed on the terms set out or referred to in Schedule 1. Customer agrees to comply with the terms and conditions (including if so required the execution and return of a Third Party Software licence) applicable to the Third Party Software and will indemnify PUSH in full against any proceedings instigated by a Third Party Software owner against PUSH as a result of any breach by or on behalf of the Customer or any member of the Customer’s Group of such terms and conditions.

3.4 The Customer may not use Diffusion Cloud other than as specified in this Agreement without the prior written consent of a director of PUSH and the Customer acknowledges that additional fees may be payable on any change of use approved by PUSH.

3.5 This Agreement grants the Customer rights to access and use Diffusion Cloud on a cloud basis and, except for limited client-side code, this is not a software licence. Accordingly the Customer does not have any rights under the Software Directive (2009/24/EC) or Copyright Designs and Patents Act 1988 and shall not reverse engineer, copy, modify, adapt, disassemble or decompile Diffusion Cloud in whole or in part for any purpose.

3.6 The Customer may not modify, enhance or alter the client-side code in Diffusion Cloud or any part of it without the prior written permission of PUSH nor ize third parties to do likewise. In the event that PUSH should give such permission, the Customer shall require any third party it so izes to be bound by the provisions of this clause 2 and clauses 6 (Title and Copyright) and 10 (Confidentiality). The Customer shall in any event remain liable for any act or omission of such third party.

3.7 The Customer may not perform (or procure a third party to perform) any penetration testing on Diffusion Cloud.

3.8 The Customer may not access Diffusion Cloud (a) other than through its published interface and (b) programmatically, including through scrapers or spiders, but otherwise than as permitted by (a), must access Diffusion Cloud only by means of human interaction.

3.9 The Customer may not use Diffusion Cloud or the Website (or any part of it, including the forums) (a) in any unlawful or illegal manner, for any unlawful or illegal purpose or in any manner which is inconsistent with this Agreement; (b) to infringe PUSH or any third party’s intellectual property rights; (c) to transmit any material that is defamatory, offensive or otherwise objectionable; (d) in any that could damage, disable or overburden or impair or compromise PUSH or any third party’s systems or security or interfere with other users and (e) to access or attempt to access or use any other user’s account.

3.10 The Customer is responsible for maintaining the confidentiality of its password, login and other registration data or access tokens. The Customer shall notify PUSH immediately of any unized use of its account, password, login or any other breach of security. The Customer may be held liable and indemnify PUSH and hold PUSH harmless for losses incurred by PUSH or any other user of Diffusion Cloud due to breach of this clause or someone else using the Customer’s password or login, including but not limited to any third party costs (e.g. hosting costs).

3.11 The Customer confirms it is acting on its own behalf and not for the benefit of any other person other than the Additional Customer.
3.12 Customers of Diffusion Cloud are expected to make all reasonable efforts to comply with the http://docs.kidsbluesky.com/cloud/latest/manual/html/appendices/notices/c_notices_overview.html