Terms of Service

This Terms of Service (“TOS”, “terms”, “Terms”, “Agreement”) and our Privacy Policy applies to you (the “Customer”, “you”, “your” and “yours”) in accessing and using any Mothercloud Limited (“Mothercloud”) websites (“Site”, “Website”) or Services.

The Agreement constitutes the complete and exclusive agreement between you and Mothercloud regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Mothercloud which is not set out in the Agreement.

All Mothercloud Software is wholly owned by Mothercloud Ltd (“Mothercloud”, “we”, “us”, “our”), a limited company registered in England and Wales with company number 10735108 and VAT Registration Number GB 322694990, with the registered office Fora, Thames Tower, Station Road, Reading, RG1 1LX.

Mothercloud reserves the right to modify or change any of the terms of this Agreement upon reasonable notice to you. We will use reasonable commercial endeavours to bring these changes to your attention, but it is your responsibility to ensure that you are aware of such changes. Your continued use of the Services after Mothercloud posts or otherwise notifies you of any changes shall be deemed to constitute your agreement to the changes.

If you do not agree to be bound by the changes you must discontinue use of the Services and notify us as appropriate.

These terms were last updated: on 1st May, 2016.

DEFINITIONS
1. “Confidential Information” of a party (the “Disclosing Party”) means all information of the Disclosing Party, which has value by virtue of not being publicly known and which is disclosed or otherwise made available to the other (the “Receiving Party”) under this Agreement.
2. “Fee(s)” means the monthly recurring fee(s) set out in the SOF.
3. “Force Majeure Event” means any event of natural disaster, casualty, act of God, act of war or terrorism, riot, governmental act or other event beyond the delaying party’s reasonable control with the exception of strikes and lockout concerning either party employees.
4. “Renewal Period” means the minimum Services contract period for which we will provide the Services as set out in a SOF.
5. “Service Commencement Date” means the date upon which the Services are said to commence, as described in a SOF.
6. “Service” or “Services” means the services to be provided by us as set out in a SOF
7. “Service Order”, “SOF”, “Order Form” or “Order” means the documentation whether physical or on-line confirming an order for Mothercloud Services which sets out the requested Service, the Term and Fees, as agreed between the parties
8. “Software” means Mothercloud owned software that we may provide to you as part of the Services
9. “Term” means the minimum initial period for which we will provide the Services as set out in a SOF
10. “User(s)” means the individuals in your business for whom the Services have been ordered and who are authorised by you to access and use the Services.
DESCRIPTION OF SERVICES
Mothercloud provides an integration Platform as a Service (“iPaaS”) to assist with the management of software integration (collectively, the “Services”). We reserve the right to provide our Services to your competitors and make no promise of exclusivity in any particular market segment.

The following are terms and conditions for the use of the Services (the “Terms”), along with any amendments thereto and any operating rules or policies that may be published from time to time by Mothercloud.
MODIFICATIONS TO THE SERVICES AND PRICES
1. Any new features that augment or enhance Mothercloud Services, including the release of new tools or resources, shall be subject to this Agreement and the failure of Mothercloud to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
2. We reserve the right to modify, suspend or terminate the Service at any time for any reason without notice or refund, including the right to require you to change your password.
3. We may also impose limits on certain features and services or restrict Customer access to parts or all of the Services without notice or liability. Mothercloud shall not be liable to a Customer or any third party should Mothercloud exercise its right to modify, suspend, limit or discontinue the Services.
4. We reserve the right to increase our prices at any time subject to providing you with 30 days advance notice. Such notice may be provided at any time by posting the changes to our website (www.mothercloud.com) or by email announcement.
5. Mothercloud shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
TERMS OF USE
1. In order to sign up and acquire license to use our Services, you will provide your full legal name, accurate, current and other complete information required and requested by Mothercloud.
2. The Services are protected by copyright, confidentiality, and other intellectual property laws. You are only granted the right to use the Services, and Mothercloud reserves all rights of ownership in the Services not granted to you in writing here. Mothercloud grants to you a personal, limited, nonexclusive, non-transferable licence to use the Services valid only for the Term of use provided in the Order, and only for the purposes solely for your business as described by Mothercloud in the Order.
3. You shall not be permitted to assign, sub-licence, sub-contract or otherwise transfer the benefit of the Licence or any part of it to a third party. Nor shall you make the Services available for access or use by any person(s) other than the Users, save as for is expressly permitted by this Agreement or authorised by Mothercloud.
4. You must not modify, adapt, decipher, decompile, disassemble, reverse engineer or otherwise attempt to determine the source code of the Software which makes up the Services.
5. Mothercloud shall not be liable to you or to any third party in the event that our continuous data integration Services fail following any modification you make to external software connected to your Service.
6. You are responsible for all data and other objects passing through our systems. Abusive scripts are scripts which interfere with our systems and/or the accounts of other customers, cause harm to any other computer system or user, or engage in any type of fraudulent activity. Any account found to be the source of abusive scripts will be immediately suspended and investigated, and subject to action as detailed under Illegal Content below. We will always notify Customers and, where necessary, fully co-operate with the authorities.
7. You must not use the Services for the transmission of illegal material. You agree to refrain from sending or receiving any materials which may be deemed to be offensive, abusive, indecent, defamatory, obscene, menacing or otherwise as prohibited by current and future statutes in force.
8. You agree to refrain from sending or receiving any material which may be in breach of copyright (including Intellectual Property Rights), confidence, privacy or other rights. If you are in any doubt as to the legality of what you are doing, or propose to do, you should take independent legal advice.
9. You must not gain or attempt to gain unauthorised access to any computer systems for any purpose. Such action may lead to criminal prosecution under the Computer Misuse Act.
10. You must not send data to the internet using forged addresses or data which is deliberately designed to adversely affect remote machines (including but not limited to denial of service (DDoS), worms and viruses, trojans and ping storms).
11. You are prohibited from running ‘port scanning’ or other software intended to probe, scan, test the vulnerability of or access our Services, systems or networks.
12. Your content must not contain ‘hateful’ material or content which seeks to incite hate.
13. Your content must not contain images, videos, depictions or descriptions of pornography which is unlawful in the UK or which is deemed to be distasteful at our sole discretion.
14. Your content must not contain ‘warez’, copyrighted music/videos or links to such content. It is the sole responsibility of the Customer to ensure that they have the rights to distribute any content displayed on their website.
15. Your website(s) integrated into our Services must conform to UK copyright law.
16. We undertake to take action required under the provisions of the Regulation of Investigatory Powers Act and will fully cooperate with the appropriate UK authorities.
17. You are responsible for ensuring that the Users comply with the terms of this Agreement and that Users do not access or use the Services in breach of this Agreement.
18. You agree to indemnify Mothercloud against all and any losses, costs and expenses Mothercloud may incur as a result of any breach by you of this clause 4.
FEES & PAYMENT
1. You will be asked to sign a Service Order Form outlining the Services you have chosen along with related Fees. The SOF will incorporate this Primary Service Agreement (“PSA”) and may also incorporate an addendum to this PSA if you are purchasing optional bespoke Services.
2. When we use the term “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that the SOF is signed.
3. If we do not, at any time, enforce any of our rights under this Agreement, we do not give up any of those rights.
4. If you are a partnership of two or more persons, you will be liable for payments individually and together.
5. All Services and Fees are charged in advance as set out in the SOF and are non-refundable, including for partial Terms of Services, Service upgrades or downgrades or unused Services in an open account. Mothercloud will not be held liable in any way for any lack of refunds in connection with the Services.
6. It is important that we receive payment on time. All Services must be paid for by the Due Date shown on the invoice unless a written adjustment has been agreed. Failure to complete payment after this time will result in:
  1. automatic account suspension should the Services remain unpaid for more than three (3) days until payment, any interest, our administrative and legal costs of collecting payment, and any further sums payable are received by us. At this point we will use all reasonable endeavours to restore Services within twenty four (24) hours.
7. We reserve the right to alter our prices at any time and will notify you of any alteration by providing you with a written notice. Notice of any price alteration will be sent via email to the email address that we hold for you in your account. If you have already purchased particular Services then the price alteration will only become effective when Services reach the end of their current Term.
SLA AND SUPPORT
1. Mothercloud does not guarantee that the Service will be continuously available as the Service may be unavailable from time to time due to either (a) scheduled downtime for Service upgrades and/or maintenance; and/or (b) any circumstances which are beyond our control such as technical failures.
2. Depending on your Plan, technical support shall be available Monday to Friday (except public holidays) between the hours of 9.00am and 5:30pm GMT.
3. Support requests must be logged by sending an email to support@mothercloud.com – our SLA does not cover support requests submitted to us via telephone unless emergency situations dictate.
4. During business hours (Monday to Friday 9am to 5:30pm) we guarantee to respond to tickets submitted via our support system within sixty (60) minutes. If for any reason we are unable to resolve the issue within sixty (60) minutes of the response, we will provide a timescale in the requester support ticket as to when the issue will be resolved, by best endeavours a resolution will be sought within 4 hours.
5. Our SLA is rescinded if you have overdue invoices on your account, or if you have paid the invoice for the period of the disruption late.
TERM AND TERMINATION
1. We will provide the Services from the Service Commencement Date throughout the Term and continue in full force afterwards until one of us ends the Agreement below or as otherwise permitted in the Agreement.
2. The initial Term of the Agreement begins on the date we make the Services as set out in the SOF available for your use and continues for the minimum Term stated in the SOF. Upon expiration of the minimum Term, the applicable Services will automatically renew for a successive minimum Term, unless and until one of us gives the other a written notice of non-renewal at least thirty (30) days prior to the expiration of the initial minimum Term, or then-current renewal term, as applicable.
3. Either party may terminate this Agreement on thirty (30) days written notice to the other to take effect only on the anniversary of the Term.
4. You may terminate this Agreement in writing to Mothercloud if the Services are unavailable or inaccessible to you and your Users for either (a) more than three (3) consecutive days; or (b) more than five (5) days in any thirty (30) day period as a result of the fault or failure of Mothercloud.
5. Either party may terminate this Agreement straight away if the other breaches this Agreement and if the breach is capable of being remedied, has not remedied it within 30 days of receipt of the written notice requiring it to be remedied; or
  1. straight away if the other is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts; or
  2. in the case of a force majeure event as specified under the “Force Majeure” section below.
6. On termination by either of us the following will apply:
  1. any rights or obligations which have accrued prior to termination will not be affected;
  2. all Confidential Information belonging to the other will be returned or destroyed within fourteen (14) days
7. In the event of us terminating this agreement due to breach of these conditions by you, we shall be entitled to the balance of all payments which would but for such termination have accrued up to the earliest date on which this agreement could have been terminated by you.
8. Under no circumstances will we tolerate threatening or abusive behaviour towards our staff or Customers. Should this occur, we reserve the right to terminate the Agreement with immediate effect.
9. Should the client, during the course of a telephone conversation, email or support ticket, make reference to “legal action” or say anything we might reasonably understand to imply or infer that the Customer may intend to pursue a legal claim against us, we reserve the right to refuse telephone support going forward.
CANCELLATION & REFUNDS
1. Upon cancellation of an account, payment is to be made up to the end of the billing period you are in. Under no circumstances shall any refunds for non-use of Services be given due to early termination of the Services by you without cause.
2. All of your data and content will be deleted from our systems immediately upon cancellation of your account. This content cannot be recovered once your account is cancelled. Mothercloud is not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.
RIGHT OF REFUSAL
1. Mothercloud has the right to accept or decline trial and paid account requests in its sole discretion with no obligation to detail the reasoning behind such decision.
WARRANTIES
1. Mothercloud represents that it has the full power and authority to enter into this Agreement. The goods and Services furnished under this Agreement are provided on an “As Is” and “As Available” basis, without any express or implied warranties including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Mothercloud makes no warranty that its Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, error free, or that defects will be corrected. Mothercloud does not warrant, nor make any representations regarding the use, or results of, any of the Services it provides, in terms of their correctness, accuracy, reliability, or otherwise. We warrant that we will use all reasonable skill and care in performing this Agreement and will comply with all relevant laws, statutes and regulations (including the Data Protection Act 1998).
2. The Customer represents that it has the full power and authority to enter into this Agreement and further represents and warrants that it will only provide Mothercloud copyrighted or trademarked material including trademarked brand names, trademarked logos and/or trademarked copyrighted phrases it has the legal authority to use. The Customer further represents and warrants that Customer’s services, products, materials, data and information used by the Customer and by its customers and users in connection with this Agreement do not, as of the date of this Agreement, and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation.
LIMITATION OF LIABILITY
1. IN NO EVENT SHALL MOTHERCLOUD, OUR EMPLOYEES, CONSULTANTS OR DIRECTORS BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOST PROFITS, LOSS OF RIGHTS OF SERVICES, LOSS OF DATA, OR INTERRUPTION OF CUSTOMER’S BUSINESS REGARDLESS OF WHETHER OR NOT WE WERE AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT UNDER THIS AGREEMENT SHALL MOTHERCLOUD’S MAXIMIUM AGGREGATE LIABILITY INCLUDING SOLICITOR AND LEGAL FEES TO THE CUSTOMER EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE CUSTOMER TO MOTHERCLOUD DURING THE PREVIOUS 3 MONTHS OF THIS AGREEMENT HEREUNDER.
2. None of the clauses herein shall apply so as to restrict liability for death or personal injury resulting from our negligence, the negligence of our employees or our sub-contractors. We will not be liable for any interruptions to Services arising directly or indirectly from:
  1. Interruptions to the flow of data to or from the internet
  2. The effects of the failure or interruption of Services provided by a third party
  3. Factors outside our reasonable control
  4. Your actions or omissions
  5. Problems with your equipment and/or third party equipment
3. No action or proceedings against us arising out of or in connection with this agreement shall be commenced more than one year after Services rendered, and both parties acknowledge that this clause constitutes an express waiver of any rights under any otherwise applicable statute of limitations.
SEVERABILITY
1. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and in no way be affected or invalidated.
FORCE MAJEURE
1. Neither Mothercloud nor the Customer will be deemed to neither break this Agreement nor be liable for any delay, failure of performance or interruption of their obligations under this Agreement or loss caused by a Force Majeure Event such as an Act of God, flood, fire, earthquake, terrorism, riots, civil disorders, strikes, lockouts or other forms of industrial action on the part of our staff.
2. If a Force Majeure event adversely affects the Customer use of the Services and continues for more than 4 weeks, the Customer may terminate this Agreement by written notice to us.
DATA PROTECTION
1. While Mothercloud processes any personal data (as defined in the Data Protection Act 1998) on the Customer’s behalf when performing its obligations under any Agreement of Services, the parties record their intention that the Customer shall be the data controller and Mothercloud shall be a data processor and in any such case:
2. The Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Mothercloud so that Mothercloud may lawfully process the personal data in accordance with this agreement on the Customer’s behalf;
  1. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
  2. Unless indicated otherwise on within the relevant Service Order, the Customer hereby agrees to allow Mothercloud to collect and process data and information regarding the Customer’s use of the Services and to provide this to: (i) sub-contractors and/or companies affiliated with Mothercloud for the purposes of marketing Mothercloud (or Mothercloud affiliated companies) Services, or other related services; (ii) for any other purpose connected with the Agreement; or (iii) any governmental or regulatory body for the purpose of Mothercloud compliance with any applicable laws and regulations. Mothercloud will provide the Customer on request with details of all such information held by Mothercloud, and will modify any information that the Customer advises is incorrect.
3. Mothercloud may, from time to time, send the Customer information relating to the Services of Mothercloud and/or those of other companies that Mothercloud feels may be of interest to the Customer. If the Customer does not want to receive such information, it should inform Mothercloud in writing.
CONFIDENTIALITY
1. The parties recognise that under this Agreement they may receive each other’s trade secrets and/or confidential or proprietary information of the other party. All information belonging to or relating to a party, without limitation, constitutes Confidential Information.
2. Each party agrees not to use Confidential Information for any purpose other than the purpose for which it is supplied under the Agreement and agrees not to divulge Confidential Information received from the other party to any of its employees who do not need to know it, and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party except to its professional advisers or as may be required by law or any legal or regulatory authority.
3. Each party will use a reasonable degree of care which in any event will not be less than the same degree of care which the receiving party uses to protect its own confidential information to keep and ensure its employees and agents keep any and all such information confidential. This obligation shall survive the termination of the Agreement for a period of three (3) years, but the restrictions contained in this clause cease to apply to any information which is in the public domain.
INTELLECTUAL PROPERTY
1. Subject to Clause 15.2, the Customer agrees that Mothercloud may use the Customer’s logo, name and trademarks in connection with Mothercloud’s advertising and marketing materials but only in accordance with Clause 15.2.
2. Mothercloud shall submit all advertising and marketing materials which incorporate the Customer’s logo, name and/or trademarks to the Customer before publication. The Customer shall have a period of seven (7) business days commencing on the date on which Mothercloud sends the materials in which to notify Mothercloud as to whether the Customer approves or disapproves the materials, such approval not to be unreasonably withheld or delayed. If the Customer does not communicate its approval or disapproval to Mothercloud within such seven day period, the Customer shall be deemed to have approved the materials.
GENERAL LEGAL PROVISIONS
1. We won’t be considered to be partners nor shall we be responsible for any act or failure to act of the other or have the right or authority to bind the other in any way.
2. Each of us gives the other its consent to positively publicise that we have a business relationship, but not to disclose the terms of it.
GOVERNING LAW
1. Except to the extent required by applicable law, this Agreement between you and Mothercloud shall be governed by English law and be subject to the full and exclusive jurisdiction of the courts of England and Wales.
2. You and Mothercloud agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Berkshire, England regardless of (A) your world-wide physical location, or (B) the jurisdiction where you purchased or use the Service.