These Terms of Service Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between Agency51 limited (“Agency51,” “we,” “us,” or “our”) and you or the entity you represent (“you”).
Use of the Services
Generally. You may access and use the Services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Services, including the Acceptable Use Policy and the other Policies as defined in Section 14.
1.2 Your Account. To access the Services, you must install and signup with a valid e-mail address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorised access to your account. You will contact us immediately if you believe an unauthorised third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.
1.3 Third Party Content. Third Party Content, such as software applications provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
2.1 To the Services. We may change, discontinue, or deprecate any of the Services (including the Services as a whole) or change or remove features or functionality of the Services from time to time. We will notify you of any material change to or discontinuation of the Services.
3. Security and Data Privacy.
4. Your Responsibilities.
4.1 Your Content. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
(a) compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law;
(b) any claims relating to Your Content;
(c) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
4.2 Other Security and Backup. You are responsible for properly configuring and using the Services. Agency51 Application login credentials generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your login credentials to your agents and subcontractors performing work on your behalf.
4.3 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Services. You are responsible for End Users’ use of Your Content and the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to Your Content and the Services.
4.4 End User Support. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
5.1 You agree to pay to Agency51 any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method presented to you at the point of subscribing to the service. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
5.2 Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
5.3 Agency51 may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Agency51 will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
6.1 Generally. We may suspend you or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine:
(a) your or an End User’s use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or Content of any other Agency51 customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) you are, or any End User is, in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days;
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Services:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any applicable fees and charges for any Services to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
(c) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your or any End User’s right to access or use the Services is in addition to our right to terminate this Agreement pursuant to Section 7.2.
7. Term; Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by: (i) providing us notice and (ii) closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 30 days advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 6.1, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (c) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Services by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
7.3. Effect of Termination.
(a) Generally. Upon any termination of this Agreement:
(i) all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(iii) you will immediately return or, if instructed by us, destroy all Agency51 Content in your possession; and
(iv) Sections 4.1, 5.2, 7.3, 8 (except the licence granted to you in Section 8.4), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
(b) Post-Termination Assistance. Unless we terminate your use of the Services pursuant to Section 7.2(b), during the 30 days following termination:
(i) we will not erase any of Your Content as a result of the termination;
(ii) you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Services and all other amounts due; and
(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.
Any additional post-termination assistance from us is subject to mutual agreement by you and us.
8. Proprietary Rights.
8.1 Your Content. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Services to you and any End Users.
8.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Submissions; (b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, Your Submissions or End Users’ use of Your Content, Your Submissions or the Services Offerings will violate the Acceptable Use Policy.
8.3 Services License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable licence to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the Agency51 Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.4, you obtain no rights under this Agreement from us or our licensors to the Services, including any related intellectual property rights. Some Agency51 Content may be provided to you under a separate licence, such as the Apache Software License or other open source licence. In the event of a conflict between this Agreement and any separate licence, the separate licence will prevail with respect to that Agency51 Content.
8.4 Licence Restrictions. Neither you nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to you under a separate licence that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services. All licences granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorise, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.
8.5 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Services (including any activities under your Agency51 account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
11. Limitations of Liability.
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF AGENCY51 HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT AGENCY51 WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST AGENCY51 ARISING OUT OF SUBSCRIBER'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF AGENCY51'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
IN ADDITION, YOU AGREE THAT AGENCY51 IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT AGENCY51 WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELLOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL CONTENT OR DATA. IN NO EVENT SHALL AGENCY51 , OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF AGENCY51 IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
SOME JURISDICTIONS LIMIT OR PROHIBIT THE FOREGOING LIMITATIONS, AND IN SUCH JURISDICTIONS THE FOREGOING LIMITATIONS SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Modifications to the Agreement.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the Agency51 Site or. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Agency51 Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
13.1 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.2 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Agency51 Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Agency51 Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Agency51 as follows: (i) by personal delivery or courier to Agency51 Limited, Great North Way, York Business Park, York, YO26 6RB, United Kingdom. We may update the address for notices to us by posting a notice on the Agency51 Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight couriers will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.5 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.8 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.6 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.7 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.8 Governing Law. These Terms shall be governed and construed in accordance with the laws of England and Wales, without regard to its conflict of law provisions.
13.9 Entire Agreement. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates’ entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control over this document.
“Acceptable Use Policy” means the policy currently available at https://docs.a51apps.com/article/20-acceptable-use-policy, as it may be updated by us from time to time.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your Agency51 account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Agency51 account.
“Agency51 Content” means Content we or any of its affiliates make available in connection with the Services or on the Agency51 Site to allow access to and use of the Services, including APIs; Documentation; sample code; software libraries; command line tools; Images and Design, and other related technology. Agency51 Content does not include the Services.
“Content” means software (including machine images), data, text, audio, video, or images.
“Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services located at https://docs.a51apps.com, as such documentation may be updated by us from time to time.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Agency51 account, rather than your account.
“Policies” means the Acceptable Use Policy, all restrictions described in the Agency51 Content and on the Agency51 Site, and any other policy or terms referenced in or incorporated into this Agreement. Policies do not include whitepapers or other marketing materials referenced on the Agency51 Site.
“Service” means each of the web services made available by us or our affiliates.
“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
“Services” means the Services, Applications, the Agency51 Content, the Agency51 Site, and any other product or service provided by us under this Agreement. Services do not include Third Party Content.
“Suggestions” means all suggested improvements to the Services that you provide to us.
“Term” means the term of this Agreement described in Section 7.1.
“Third Party Content” means Content made available to you by any third party on the Agency51 Site or in conjunction with the Services.
“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Agency51 account and any computational results that you or any End User derive from the foregoing through their use of the Services. Your Content does not include Account Information.
“Your Submissions” means Content that you post or otherwise submit to developer forums, sample code repositories, public data repositories, or similar community-focused areas of the Agency51 Site or the Services.